MUSLIM CONDUCT OF STATE
BEING A TREATISE OF MUSLIM PUBLIC INTERNATIONAL LAW,
CONSISTING OF THE LAWS OF PEACE, WAR AND
NEUTRALITY, TOGETHER WITH PRECEDENTS
FROM ORTHODOX PRACTICE, AND
PRECEDED BY A HISTORICAL AND
GENERAL INTRODUCTION
b
MUHAMMAD HAMlDULLAH
(of the Faculty of Law, Osmania University)
Hyderabad- Deccan
Sh. MUHAMMAD ASHRAF
KASHMIRI BAZAR - LAHORE (India)
BY THE SAME AUTHOR
[Born at Hyderabad-Deccan, 16th Muharram 1326
H. 1 19th February 1908 ; studied at Hyderabad-Deccan , Bonn
am Rhein and at the Sorbonne ; visited libraries of Hijaz,
Syria, Lebanon , Palestine, Egypt, Turkey, Germany, Holland,
England, France, Afghanistan, Morocco, Tunis, Algeria, and
India for the preparation of this thesis ].
1. (In Arabic) : </U)ULI ^ jpljjJI
SjJayi, Cairo, 1360 H./1941.
2. (In Hindustani) : Jj*»l jSULW
Hyderabad-Deccan, 2nd ed. 1364 H./1945.
3. Die Neutralist im islamischen Volkerrecht, Bonn
and Leipzig. 1935.
4. La Diplomarfe musulraane a lepoque du Prophete et
des Khalifes Orthodoxes, 2 Vols., Paris, 1935.
5. Les Champs de bataille au temps du Prophete, Paris,
1939.
5*ai (Do. enlarged Hindustani edition) : J.
with 8 maps and 34 illustrations, Hydera-
bad-Deccan, 3rd ed. 1364 H./1945.
6. Some Inscriptions of Madinah of the Early Years of
Hijrah, Hyderabad-Deccan, 1939.
7. (In Hindustani) : fW
Hyderabad-Deccan, 1361 H./1942.
ETC., and a number of articles in various periodicals.
CONTENTS
PAGE
Preface ... xi
Part I.-INTRODUCTORY
CHAPTER I. Definition and Nature ... 1
II. Early Terminology ... 7
III. Subjects of Muslim International Law... 11
IV. The Object and Aim of International
Law ... 13
V. Its Sanction ... 14
VI. Its Roots and Sources ... 15
1. The Qur’an ... 15
2. The Sunnah ... 18
3. Orthodox Practice ... 20
4. Practice of Ordinary Muslim
Rulers ... 21
5. Opinions of Jurists ... 2L
(a) Ijma ... 21
(b) Qiyas ... 23
(i) Modern European Authors 26
( ii ) Modern Muslim Writers ... 28
6. Awards of Arbitrators and Re-
ferees ... 30
7. Treaties ... 31
8. Official Instructions ... 32
9. Internal Legislation and Unilateral
Declarations ... 32
10. Custom and Usage ... 32
Retrospect ... 36
IV
PAGE
Chapter VII. The Place of International Law in Law
General ... 37
VIII. The Contribution of Islam to the Inter-
nationalising of Human Society ••• 39
(a) Brotherhood of Man ••• 41
( b ) Hajj or Pilgrimage to Ka'bah 42
(c) Kfailafat - 43
IX. The History of International Law before
Islam ... 46
Pre-Islamic Arabia ... 50
X. Place of Islam in the History of General
International Law ••• 60
XI. The Ethical Basis of Muslim Law ... 66
Part II.— PEACE.
Chapter I. Preliminary Survey ... 68
II. Independence ... 68
State ... 73
Intervention ... 77
III. Property ... 80
Boundaries ... 82
Open Sea ... 83
Modes of Acquiring Territory ... 87
Various Kinds of Territories under
Power of a State ... 90
< (a) Regular Parts of Dominions
and Condominiums ... 91
(b) Tributary Independent States 91
(c) Nominally Dependent ... 92
(d) Protected States ... 94
(e) Sphere of Influence ...- 95
Neutralisation and No-Man's Land ... 96
V
PAGE
Chapter IV. Jurisdiction
Things
Persons
(а) Muslim Subjects at Home ...
(б) Non-Muslim Subjects at
Home'
Naturalisation
(c) Muslims in Foreign Territories
( d ) Citizens of one Muslim State
in another
(e) Muslim Citizens of a Non-
Muslim State
(/) Resident Aliens in Muslim
Territory
Extraordinary Cases in Jurisdiction ...
1. Head of the State
2. Envoys and Ambassadors
3. International Judges and Arbitra-
tors
4. Public Armed Forces
(*) Muslim Army
(is) Enemy Army
5. Neutralised Land and No-Man’s
Land ...
6. Special Privileges, Capitulations
and Ex-territoriality
7. Extradition ...»
V. Equality of Status
VI. Diplomacy
Reception of Envoys
Privileges of Envoys
Peaceful Settlement of International
Differences
97
97
98
96
99
103
104
115
117
117
122
122
127
127
127
127
128
129
129
131
133
134
137
139
140
VI
PAGE
Part III.-HOSTILE RELATIONS
•
CHAPTER I. Preliminary Remarks ... 146
II. Various Kinds of Hostile Relations ... 147
1. Reprisals ... 147
2. Pacific Blockade ... 148
3. Miscellanea ... 148
III. Nature and Definition of War ... 149
IV. Lawful Wars ... 153
1. The Continuation of an Existing
War ... 153
2. Defensive ... 154
3. Sympathetic ... 155
4. Punitive ... 156
5. Idealistic ... 156
V. Enemy Persons ... 160
VI. Apostasy ... 161
Treatment of an Apostate ... 162
Distinction between Territory of
Apostates and Territory of Ordi-
nary Non-Muslims ... 163
VII. Civil Wars and Rebellions ... 165
(a) Various Kinds of Opposition ... 166
1. Religious Grounds ... 166
2. Political or Worldly Reasons :
Insurrection, Mutiny, War of De-
liverance, Rebellion, Civil War 167
(b) Treatment of Rebels, etc. ... 168
(c) Belligerent Rights of Rebels ... 170
( d ) Special Privileges of Rights ... 171
(e) Miscellanea ... 173
(f) Deposition of Muslim Ruler ... 174
(g) Non-Muslim Rebels ... 175
vii
PAGE
CHAPTER VIII. International Highwaymen and Pirates 177
IX. War with Non-Muslim Foreigners ... 180
X. Declaration of War ... 181
XI* Effects of Declaration of War ... 184
1. General Effects ... 184
2. Effects on Commercial Relations ... 185
3. Effects on Trusts and Debts ... 187
4. Effects on Treaties ... 189
XII. Treatment of Enemy Persons ... 192
1. Enemy Resident Aliens ... 192
2. Enemy at Home ... 193
3. Enemy in the War Zone ... 193
XIII. Acts Forbidden ... 195
XIV. Giving Quarter ... 200
XV. Treatment of Prisoners of War ... 204
1. Muslim Prisoners ... 204
2. Enemy Prisoners captured by
Muslims ... 205
(a) Beheading of Prisoners ... 208
( b ) Enslavement ... 209
(c) Ransom ... 211
(d) Exchange of Prisoners ... 212
(e) Gratuitous Release ... 212
XVI- Choice given to Inhabitants of Annexed
Territory ... 214
XVII. Acts Permitted ... 215
XVIII. Spies ... 222
XIX. Uniforms ... 224
XX. Flags of Truce ... 226
XXI. Enemy Property ... 227
1. State Property ... 229
2. Private Property ... 236
VJI1
PAGE
3. Distribution of Booty ... 237
(0 Tanfil ... 240
(tt) Salab ... 240
(Hi) $afly ... 241
4* Postliminium or Return of Things
and Persons captured by Enemy ... 242
CHAPTER XXII* Women in Muslim Army 244
XXIII. Treatment of the Dead ••• 246
XXIV. Non-Hostile Intercourse with Bel-
ligerents ... 247
1. Parley ... 247
2. Exchange of Prisoners ... 248
3. Permission for Travel, Transporta-
tion of Goods and Licences to
Trade ... 249
4. Contraband of Trade ... 251
5. Truce and Armistice ... 254
XXV. End of War ... 257
Nature of the Treaty of Peace ... 259
Effects of a Treaty of Peace ... 261
Elements of Treaty ... 261
Ratification of Treaties ... 262
Interpretation of Treaties ... 263
Amendment of Treaties ... 263
Denunciation of Treaties ... 264
Hostages and Pledge ... 264
The Classical Treaty of liudaibiyah... 265
XXVI. Miscellanea ... 271
1* Neutral and National Ambulance
Service ... 271
2. Army-Court ... 271
3> Religious Service in time of Danger 273
IX
Page
4. When and Why the Muslims
Should Agree to make Peace ... 273
5. Effects of International and Mis-
taken Inter-Muslim Homicide ... 273
6. Debts due to a Defeated Enemy ... 274a
Part IV.-NEUTRALITY.
CHAPTER I. Introductory ... 276
II. Technical Term for Neutrality ... 277
III. Teachings of Qur’an on Neutrality ... 283
IV. Cases and Treaties of Neutrality in the
Time of the Prophet and the Ortho-
dox Caliphs ... 286
1. Cases ... 286
2. Treaties ... 287
V. Laws of Neutrality According to Jurists 294
APPENDICES.
Appendix A.
Instructions to Commanders ... 298
1. By the Prophet ••• 298
(a) General ... 298
( b ) To ‘Abdar-RahmSn«ibn-‘Awf 299
2. By Abu-Bakr ••• 300
(c) To UsSmah ... 300
(d) To Yazid-ibn-Abi-SufySn ... 301
3* By ‘Umar ••• 302
4. By Abbasid Caliphs ... 303
(a) To the Commander of the
Land Forces
(b) To the Commander of Sea
Forces
303
306
Appendix B. Bibliography
Page
309
1. ( a ) Arabic MSS.
... 309
(i>) Printed Works in
Oriental
Languages
... 312
Arabic
... 312
Hindustani
... 315
Persian
... 316
Turkish
... 316
2. Works in European Langu-
ages ... 317
3. Works on History of Inter-
national Law in Non-Muslim
Lands
Index
• • •
326
231
PREFACE TO THE NEW EDITION
It is always flattering to an author to see his work
requiring a new edition or translation. The first edition and
its reprint were brought out during the war, and the new
one is suffering from the aftermath. Some of the needs of
the western international law for change, after the strain of
the global war, may be met by bringing into relief the
picture of another system of international law which had
served the requirements of another world culture, Islam,
during its heyday, when it ruled supreme from the Atlantic
to the Pacific. There is a renaissance at present throughout
the Muslim world, and Indian Islam is certainly not the least
concerned with the revival of its culture and the restoration
of its heritage, material as well as spiritual. I do not pretend
that my humble effort will satisfy all that officials of the
foreign and military deoartments of a modern Islamic State
may require in this particular branch. It is not a blue print,
it is a draft sketch. In this revised edition there are several
corrections and improvements to the extent that war and my
own limitations have allowed, and other workers in the field
would remedy my shortcomings.
I am thankful to Messrs. Shaikh Muhammad Ashraf of
Lahore for including this work in their series. Theirs has now
become a national institution and not merely a commercial
concern. In spite of thousands of miles of distance which
separate us, they have kindly allowed me to read one of the
proofs ; and if still mistakes lurk, the fault is not theirs.
The work has had considerable circulation in England
XU
and the United States, in spite of war conditions, and has
been included in the curricula of several Indian universities.
9
The new edition may meet the requirements of the wider
circle of the peace time literary world. And I take the op-
portunity of expressing my heartfelt gratitude to our grand
old man of law in Hyderabad, Nawab Dr. Sir Amin Jung
Bahadur, to whose generous help I owe several of the
corrections and improvements in the present edition.
v .uA-i at i>i jc t j
Osmania University ,
Hyderabad'Deccan, India ,
Muharram 1365 H./1945
M. H.
PREFACE TO THE FIRST EDITION
T HERE was no international law in Europe before 1856.
What passed as such was admittedly a mere public law of
Christian nations. It was in 1856 that for the first time a non-
Christian nation, Turkey, was considered fit to benefit from
the European Public Law of Nations, and this was the true
beginning of internationalising the public law of Christian
nations. That, however, does not mean that international
law, with its modern connotation, was born then and there ;
it already existed elsewhere. For, Islam had recognised that
all states, irrespective of religion or race, have similar rights
and obligations Unlike any other nation of antiquity, the
public law of nations evolved by Muslims was not meant to
regulate the conduct of a Muslim state with regard to
Muslim states alone, excluding all the non-Muslim world.
Even as a separate and independent science, “ interna-
tional law ” owes its origin to Arab Muslims of the
Umaiyad period, who divorced it from political science and
law general, though not displacing it from its ethical
basis.
With the loss of their empires, average Muslims have
forgotten their rich cultural heritage. Over a decade ago,
when I began writing these pages, I had not the slightest
idea that, to write on Muslim international law meant des-
cribing the very first phase of this science after it became a
self-contained and independent branch of learning. Nor was
I aware at that time that any modern work existed on the
subject or was even under preparation.
At the instance of the League of Nations and with
XIV
the warm support of the Head of the Law Faculty of the
Osmania University, Public International Law was introduc-
ed in the Osmania LL.B. curriculum as a compulsory subject,
and I happened to be in the first batch of students after this
decision. It struck me at once that what was taught us as
international law was identical in many respects with the
teachings of the books of Fiqh and Muslim History. When
I talked this over with our learned Professor and Head of
the Faculty, Husain ‘All Mirza, he encouraged me in the
idea of writing an article, perhaps to be read in the Law
Students’ Union.
The bulk of the article, however, daily increased, and in
the following year I was permitted to take the same theme
for subject as a post-M. A. research scholar. After exhaust-
ing the material available in the libraries of Hyderabad,
I was allowed to proceed abroad to study in the libraries of
Hijaz, Syria, Palestine, Egypt and Turkey. And finally I was
permitted kindly by the Osmania University, for which
I was preparing the thesis, to proceed to Bonn and sub-
mit the same thesis there for a doctorate. This I did in
August 1933 after completing only two terms (9 months) in
that University. There I selected only the last part of the
work, dealing with neutrality, to print and get the
degree. My further studies on an allied subject, Early Mus-
lim Diplomacy, for a doctorate of the University of Paris,
together with researches in the manuscript libraries of
Europe and North Africa, increased my data.
I am not yet satisfied with what I have jotted down,
and it is with great diffidence that I venture to pub-
lish these few pages.
I take this opportunity of expressing my deep sense
of gratuide to the professors under whom I worked or from
whom I have profited in the preparation of this mono-
graph :
XV
Prof. ‘Abdul-Wasi‘, Head of the Department of
Fiqh, Osmania University, ’
Prof. Sher ‘All, Head of the Department of KalSm and
Muslim Philosophy, Osmania University,
Prof. Muhammad ‘ Abdul-Qadlr §iddiqi, Head of the
Faculty of Theology, Osmania University,
Prof, ijusain ‘AU Mirza, Head of the Faculty of
Law, Osmania University,
Prof. Mir SiySdat ‘All Khan of the Law Faculty,
Osmania University.
These five savants, the first two of whom have since
departed this life, were originally appointed to guide me in
my researches. Again :
Prof. Paul Khale, Director of Oriental Seminar, Bonn,
Prof. Salim Fritz Krenkow of the Oriental Seminar,
Bonn,
Prof. Thoma, Director of the Institute of International
Law and Politics, Bonn,
Prof. Snouck-Hurgronje of Leiden.
Prof. Gaudefroy-Demombynes of the Sorbonne, Paris,
Prof. Louis Massignon of the College de France,
Paris,
Prof. William Margais of the College de France,
Paris.
And I ever remember what I learned from them with
gratitude.
Hyderabad-Dn.
1941.
M. H.
MUSLIM CONDUCT OF STATE
Being a treatise of Muslim Public International Law ,
consisting of the laws of war, peace and neutrality together
with precedents from Orthodox Practice.
PART I
INTRODUCTORY
CHAPTER I
Definition and Nature
AS has aptly been said :
“ When stable communities— whether Tribes, or City-
States, or States of a modern type— are permanently
contiguous, customs hardening in time into law never
fail to regulate their intercourse. Ubi societas, ibi jus ;
wherever developed communities are brought in contact
with each other, juridical relations must sooner or later
be formed not mainly by agreement, tacit or express, but
by the very necessity of the case, and partly from the
same causes as those which working internally create
States.” (John Macdonell in the Introductory Note to
C. Phillipson's International Law and Custom of Ancient
Greece and Rome).
In other words, International Law means rules of the
conduct of States in their mutual dealings. Obviously, it is
not necessary that there should be only one set of rules, or
one system of international law, at a time, for the conduct
of all the states of the world. And several systems of
international law could, and in fact did, exist simultaneously
in different parts of the globe. Even the modern, so-called
European, International Law is not a collection of unani-
mously approved rules.
Islam has elaborated its own system of public international
law. Before describing it in detail, it might be useful to
define precisely what I mean by the term Muslim
International Law.
Muslim International Law may be defined as : That part
of the law and custom of the land and treaty obligations
1
2
MUSLIM CONDUCT OF STATE
which a Muslim de facto or de jure State observes in its
dealings with other de facto or de jure States.
A few words of explanation may not be out of place.
We have emphasised the point that what a Muslim
State accepts as such is the Muslim International Law.
This must be borne in mind from the very outset. Muslim
International Law depends wholly and solely upon the will of
the Muslim State. It derives its authority just as any other
Muslim law of the land. Even the obligations imposed by
bilateral or multilateral (international) treaties have the
same basis ; and unless they are ratified and executed by
the contracting Muslim party, they are not binding : and
their non-observance does not create any liability against
the Muslim State. Of course it does not matter whether
the acceptance is express or tacit. 1 It may be added that
the promulgation and execution of International Law with
the consent of all the States of the world is an ideal which
has never been achieved, even for a short term, in the long
annals of Man.
We have, however, recognised in our definition that not
only laws and customs of the land, but even treaties, impose
obligations upon a Muslim State. Treaties will be dealt with
later, but what is law ?
Law ( Fiqh ) is variously defined by classical Muslim
jurisconsults. “ The Knowledge of what is for and upon
one” U 5 U*JU Jvi^o) is a definition attri-
buted to Abti-Hanlfah, 2 which in other words may be
rendered as * the science of the rights and obligations of
man.’ A late authority, Muhubbullah al-Bihariy, introduces
this all-embracing subject in the following words 3 of his
book (compiled 1109 H.)
The science of ascertaining religious commands (re-
garding practical affairs of life) by means of their detailed
1 See further, infra , Sources of Muslim Law, Effect of Treaties, etc.
a by ?adrush-3harf‘ah, p. 9.
* ***•*, p* 5.
DEFINITION AND NATURE
3
guides.
(By guides he means authority pr source of information).
A glance at the contents of works on Fiqh would reveal
that they embrace practically all the affairs of human life,
material as well as spiritual. In view of the standard
definitions given above and in the face of the contents of
works on Fiqh, there remains not the slightest doubt that
international law, i.e„ the rules of state-conduct in times of
war, peace and neutrality, form part of the ordinary law of
the land, the Fiqh. These rules of conduct are generally
dealt with in books on Fiqh under the heading Siyar (
i.e., conduct, as we shall show in the next chapter.
Here a brief expose of the origin of law according to
Muslim jurists might profitably be added. They 1 say that
man must always do what is good, and abstain from what is
evil, and take scrupulous care of the intermediary grades
of plausible, permissible and disliked ( '*5^
3 o'**"*** * £•?»). It is, however, not easy
to distinguish between good and evil, especially when the
matter concerns the subtleties of a complex civilised life
beyond the pale of ordinary commonplace things. Practical
needs would have required the possession of the power to
legislate, — (or, lay down definitely grades of good and evil
of each and every matter) in the hands of Man, either
individual, as jurisconsult, or collectively organised, i.e., a
State. Yet mere reason, regarded as the touchstone of good
and evil, is not without grave difficulties. For it is possible,
and also a matter of fact — so argue Muslim jurists — that
different persons opine differently regarding the same things.
The belief in Messengers of God is useful even from the
point of view of jurisprudence, in so far as the awe and
respect due to their persons lead to the acceptance of certain
’ E.g., by at-TaftazSniy, pp. 173-96 and any book on
Muslim Jurisprudence ch. Husn wa Qubh. Again, Osttorog.
Angora Reform, ch. Roots of Law ; D.B. Macdonald, Development of Muslim
Theology, Jurisprudence and Constitutional Theory (New York), p. 73 et seq.
4
MUSLIM CONDUCT OF STATE
fundamentals without further dispute, wherefrom other and
further details may be elaborated. For this reason the
Muslim savants are very thankful to the generosity of God
that He gave men, along with reason, certain chosen human
Guides to help them in the conduct of life. These
selected and chosen ones pointed out what God com-
manded, God the real Sovereign and Lawgiver, regarding
good and evil. Muhammad has been acknowledged by the
Muslims as the Messenger of God, and whatever he gave
them in his lifetime, commands as well as injunctions, in the
name of his Sender, God, was accepted by the Muslims as
undisputably final and most reasonable. These Divine
Commands, known as the Qur'an and the hadith — as we
shall see later in detail— served practically all the needs of
the Muslim community of that time. But human needs
multiplied later in such a manner that no express provision
seemed to be available in either the word or the deed of
the Messenger, who himself had passed away, disconnecting
the link whereby Man could receive Commands from his
Lord. The consequent result would have been fatal and the
fabric of Fiqh would soon have collapsed under the strain,
had not there been express provisions in the law itself for
further elaboration. Credit must also not fail to be given to
the Muslim jurists, after the death of the Prophet, who not
only discerned this elasticity of the Divine Law, but also
utilised it to its fullest extent. In time there emerged a
complete system of law which served all the purposes of
the Imperial Muslims, even at the height of their widest
expansion from the Atlantic to the Pacific Oceans.
Thus law originated from the direct Commands of God ;
but the power retained by man to interpret and expand
Divine Commands, by means of analogical deductions, and
other processes, provided all that was required by the
Muslims. In this way a dual need was served : that of
sanctity to inspire awe in the minds of those who were
intended to observe it, and that of elasticity or capability of
development to meet the needs of times and circumstances.
DEFINITION AND NATURE
5
We have defined international law, first, as a part of the
law of the land. The province of the law of the land
is therefore, obviously, wider than that of international law ;
and we have no concern here with the portion of the law
of the land which regulates internal affairs of the State or
its subjects.
We have also acknowledged custom as contributing to
international law. No system of law can positively provide
guidance regarding every detail of every matter. Completion
of a list of obligatory and prohibited things, along with
details of a certain number of permitted matters, — that is
all any system of law can achieve. Naturally the prevalent
customs ( ), general practice ( oil* ), and even inno-
vations hardening in time into usage f ^**) regulate
the relations in such cases. We shall discuss this further
in the chapter on Sources of Muslim Law.
Besides the laws and customs of the land, treaties
between two or more states create obligations. This distinct
kind of addition to the fabric of the law is tolerated, for
shorter, or longer periods, in the interests of the State. The
classical Treaty of Hudaiblyah provides us with a precedent
of terms even improper in themselves being capable of
acceptance with a broader view of the ultimate good of the
community.
Further, the distinction between a de jure and a de facto
state is necessary, first because sometimes special institutions
or happenings (for instance a powerful rebellion) although
not acknowledged as States de jure are yet States de facto.
It is possible in special cases that a certain state does not
simultaneously possess both the attributes of being de jure
as well as de facto. Secondly, the aim of this distinction is
to point out that we are concerned with foreign states as
such, and not with foreigners resident in Muslim territory
regarding their private affairs, e.g., inheritance, nationality
and the like. These belong to Private International. Law
or the Conflict of Laws as it is also called. In this connec-
tion, too, it might be recollected that the Private Interna-
6
MUSLIM CONDUCT OF STATE
tional Law of Islam 1 is also a part of Fiqh, and derives its
authority not from any foreign source but from the sovereign
will of the Muslim State itself.
In our definition the words “ dealings with other . . .
States ” have a special significance. We intend thereby to
convey the idea that Muslim International Law is only that
which is observed by a state which acknowledges Muslim
law as the law of its land in its dealings with other states.
These other states may be Muslim or non-Muslim. We are
not concerned with the laws and usages of non-Muslim States,
except in so far as the Muslim residents there are concerned,
or in so far as those laws and usages have been accepted by
the Muslim State to act upon in its international intercourse.
It may be added that, for purposes of illustration,
precedents from Orthodox Practice have freely been referred
to. Abnormal and temporary abuse or overlooking of certain
rules by a certain state cannot render such rules null and
void.
1 On Muslim Private International Law, see the recent monograph.
La Conception et la Pratique du Droit International Priv6 dans V Islam , 6tude
juridique et historique, par Choucri Cardahi (Recueil des Cours, 1937, II,
pp. 510-650, Academie de Droit International, The Hague).
CHAPTER II
Early Terminology
ALTHOUGH the pre-Islamic Arabs had their own inter-
national usages, yet they could not have elaborated them
into a system. When Islam came and founded a State
of its own, the earliest name given by Muslim writers
to the special branch of law dealing with war, peace and
neutrality seems to have been Siyar ( ), the plural form
of Strat («;*'-»), meaning conduct and behaviour. A few
quotations will support my contention
(a) Ibn-Hisham (d. 218 H.) p. 992) :
2 . AaJI AjtiiX* AjJI gijo £>l ftb r \
' A******
lyir ^ l^oJo lyis Vj £i\
' Ajui gj^Mi ^ , gfjxl
I.e. : Then the Prophet ordered Bilal to hand over the
banner to him. He did so. Then the Prophet eulogised
God and asked for His mercy upon himself, then said :
O son of ‘Awf! Take it. Fight ye all in the path of
God and combat those who do not believe in God. Yet
never commit breach of trust nor treachery nor mutilate
anybody nor kill any minor or woman. This is the pact
of God and the behaviour of His Messenger for your
guidance.
( b ) Ibn-Habib (d. 245 H.) in his P- 265 :
(J^AaLl JyJLI j
I.e. : They used to give public feasts there and behaved
there according to the behaviour of the kings of DGmatul-
Jandal.
8
MUSLIM CONDUCT OF STATE
(c) Ibn Sa‘d (d. 230 H.) (in his OlLJ, V ol. 1/2, pp. 32-33) :
o^yLMi aJ Jjj- 3 V ^ ‘ i^JI £
Z.e. : The Muslim army shall concede to them a share
in the booty, adroitness in government and moderation
in behaviour. This is a decision which neither of the
contracting parties may change.
These few citations show that the conduct of the
ruler, not only in time of war but also in peace, was referred
to by the term sirat as early as the time of the Prophet
and even in pre-Islamic times. This is according to authors
of early in the third century of Hijrah. The term was
adopted for “ International Law ” at least a century earlier.
Thus Abu-Hanifah (d. 150 H.) is known so far to be the
first 1 to designate with the term siyar the set of special
lectures he delivered on the Muslim Laws of War and
Peace. These lectures were edited and ameliorated by
several of his pupils of which the and
v— >U* 0 f ash-Shaibaniy (d. 189 H.) have, in one
form or other, come down to us. A contemporary of Abu-
Hanifah, the Syrian Imam al-Awza‘iy (d. 157 H.) criticised
the opinions of the ‘Iraqi Imam, Abu-Hanifah. Al-
Awza‘iy’s monograph has not come down to us, but a
rejoinder to it by Abu-Yusuf (d. 192 H.), the famous
pupil of Abu-IJanifah, with the title,
has recently been edited. Ash-Shafi‘iy (born 150 H.) also
refers to this Siyar of al-Awza iy in his works ( cf .
^»Y1 vol. vii, pp. 303-336), as also to the Siyar of
al-Waqidiy (d. 207 H.). Henceforward the word seems to
have become a technical term commonly used by jurists of
1 Cf . Editor's note in <^*1 Yl 1 by A bn- Yusuf, recently
published. Zaid- ibn-' Ally (d. 120 H.) has used the same term in his
compendium of fiqh £ ; and if the work really originated from him,
the priority must go to him.
EARLY TERMINOLOGY
9
all times. A typical passage of as-SarakhsIv (d. 483 H.) will
show what he understood by this term, and in fact what
Islamic books of international law contained : —
& m
AiY Ujb Mi A.J j jamJI ^ jtJal
(JaI JLl gt» . *11 L I < jju *
g-» j a* JJ1 ^ j^x<* g* $ ejji.1
Jjkf a*j jlSLJVb ^li£J li^ASkf _yb
3 o' 3 Jl»- u*^'
- Jijk 1 * li
“ Know that the word Siyar is the plural form of
Sirat. We have designated this chapter by it since it
describes the behaviour of the Muslims in dealing with
the Associators (non-Muslims) from among the bel-
ligerents as well as those of them who have made a
pact (with Muslims) [and live as Resident Aliens or
non-Muslim Subjects] ; in dealing with Apostates who
are the worst of the infidels, since they abjure after
acknowledgment (of Islam); and in dealing with Rebels
whose position is less (reprehensible) than that of the
Associators, although they be ignorant and in their
contention on false ground." 1
It must, however, be pointed out that the term Sirat
was used by historians to designate the life of the Prophet.
The analogy has been brought into relief by different
authors. Radlyud-Dln as-Sarakhsiy, for instance, states
in his chapter on International Law : “ The word Sirat,
when used without adjectives, meant the conduct of the
Prophet more especially in his wars. And for this the
Prophet has said : * Every prophet had some profession (for
livelihood), and my profession is Jihad', and in fact my
means of subsistence are placed under the shadow of my
1 by aa-SatakhsIy. Vol. X, p. 2.
10
MUSLIM CONDUCT OF STATE
spear.’ " x In other words, the term sir at* which linguistically
signified conduct in general, acquired later the restricted
sense of the conduct of the Prophet in his wars, and later
still the conduct of Muslim rulers in general in international
affairs.
1 kjixvU by Radiyud-DIn as-Sarakhsiy. Vol. I, fol. 567fl, b (MS.
Waliuddin, Istanbul, No. 1356) :
J SJ ; ilbaJI AjJt Jl* l^bJ ^
- Lrl ^ o-j
1 For a philological discussion of the term see also the glossary
of my (Cairo, 1940-1.)
CHAPTER III
Subjects of Muslim, International Law
BY subject Muslim jurists understand a thing the
essential appurtenances Jyly) of which are under
discussion . 1 By subjects of international law, we understand
the categories of people regarding whose cases this part of
the law is applied. They comprise :
Firstly, every Independent State which has some re-
lation or other with other states.
Secondly, Part-Sovereign States which possess at least
a limited right to foreign relations.
Thirdly, Belligerent Rebels who have acquired resis-
ting power and a territory over which they
exercise the ordinary functions of a state.
Fourthly, Highwaymen and Pirates.
Fifthly, Resident Aliens in Islamic territory.
Sixthly, Muslim Citizens residing in foreign countries.
Seventhly, Apostates.
Eighthly, Privileged non-Muslims or the
Obimmis, that is, non-Muslim Subjects of a Muslim State
as distinguished from ordinary Resident Aliens.
Obviously, with some of these relations both pacific
as well as hostile are possible. While with others only one
of these is possible. For instance, rebellion is possible only
with hostile relations as far as the mother country is
concerned. And as soon as a peace is concluded between
the rebels and their mother country, they are either recog-
nised as an independent state— and not mere rebels— or are
reduced to the position of obedient citizens of the state,
1 P- 21.
12
MUSLIM CONDUCT OF STATE
regarding whom international law is no more applicable.
As far as states other than the mother country of the
rebels are concerned, the rebel ones enjoy the same status
as ordinary states, yet the very recognition of rebellion and
concession of belligerent rights signifies a state of war
between the rebels and their country. However, we shall
deal with it in detail in a subsequent chapter.
CHAPTER IV
The Object and Aim of International Law
ALTHOUGH Islam regards the life of this world as only
a transitory stage, a period in which to till the soil for
reaping in the Hereafter,— hence the assertion of al-
Bihariy 1 that the object of the knowledge of Muslim law
is well-being in the eternal next world, — yet unlike many
other religions, Islam does not recommend renunciation of
the world, but rather enjoying to the full the blessings of
temporal life. The Qur’an says
There are some men who say, 0 Lord, give us good in
this world ; but such shall have no portion in the next
world. And there are others who say O, Lord, give
us good in this world and also good in the next world , and
deliver us from the torment of the Fire. They shall have
a portion of that which they have gained : God is swift
in taking an account. 2
And again :
But seek the abode of the Hereafter in that which
God hath given thee and neglect not thy portion of this
world, and be thou kind even as God hath been kind to
thee, and seek not corruption in the earth. Lo! God
loveth not corrupters. 3
It goes without saying that the whole fabric of Muslim
law was constructed for guiding the Faithful in regulating
their life in this world. Whatever its ultimate object, its
temporal and mundane aim is the ability to lead one’s
life in the fairest possible way. Mutatis mutandis , Muslim
International Law would aim at the justest possible conduct
of the Muslim ruler in his international intercourse.
‘ ji f j— •, p. 10. * Qur’an. 2 : 200-02. » Idem, 28 : 77.
CHAPTER V
Its Sanction
TO a certain extent the sanction of Muslim International
Law is the same as that of the ordinary Muslim law
of the land. It is especially so as regards the relations of
foreign residents with the state in which they reside. The
government, through its judicial tribunals, administers
justice to those to whom wrong is done. As is known, the
real sanction of Muslim law is not the organised will of the
sovereign (who, being human, may enjoin tyranny), but
the belief in the after-life and judgment by God. Spiritual
and conscientious inducing and deterring factors are more
effective than temporal persuasions and prohibitions. For
thus one abides by the law, not only under coercion, but
even when there is none to oppose one’s will, except,
perhaps, the fear of retaliation or scandal and disrepute.
CHAPTER VI
Its Roots and Sources
BY “sources” of a science we mean here the places
where its rules are first to be found. Writers on Muslim
Jurisprudence have always used the expressive term
“ Roots " ( Jy»l) from which rules shoot for this purpose.
We do not mean the beginning of these rules clad in all
authority required to give them binding power. Otherwise
the only possible source of international law would be the
acceptance of a rule by a government to use in international
relations. We shall consider in this connection the
following : —
1 . The Qur’an.
2. The Sunnah or the traditions of the Prophet.
3. The Orthodox Practice of the early Caliphs.
4. The Practice of other Muslim rulers not repudiated
by the jurisconsults.
5. The Opinions of celebrated Muslim jurists :
(a) consensus of opinion (gW),
( b ) individual opinions
6. The Arbitral Awards.
7. The Treaties.
8. The Official Instructions to commanders, admirals,
ambassadors and other state officials.
9. The Internal Legislation for conduct regarding
foreigners and foreign relations.
10. The Custom and Usage.
1 . The Qur’an.
The Qur’an is admitted by the Muslims as the Word
of God and therefore the basis of all their law. It is in
16
MUSLIM CONDUCT OF STATE
fact a collection of Divine Revelations — more precisely, the
selected compilation of the so-called “ recited revelation ”
reaching Muhammad through the agency of
the angel Gabriel. The Qur'an was not revealed as a
whole, but came down in fragments, as necessity arose,
during the prophetic career of Muhammad, which lasted
for about twenty-three years. Whenever a portion of the
Qur’an was revealed to him, he used to order one of his
amanuenses to take it down. It was also he who prescribed
and pointed out the place or places to which the verse or
verses properly belonged : a the verses of the Qur’an were
not compiled in chronological order. Obviously they were
not written in the time of the Prophet in book form, but
on stray leaves of paper, shoulder blades, date leaves, and
other handy material . 8 It is further admitted that when some
revealed verses were cancelled, naturally on the authority
of the Prophet alone, they were omitted and obliterated . 4
As a rule, the Companions of the Prophet used to commit to
memory as much of the revealed verses as they wished or
were able to remember, and also made written copies for
themselves. Even as early as the first years of Muhammad's
prophethood, there were extant in Mecca private copies of
* According to the Qur'an ( cf . 53 : 3-4) whatever the Prophet uttered
was based on divine revelation, yet not all that he uctered was ordered
by him to be recited in religious services. Hence the distinction between
recited and unrecited revelations.
9 Musnad of Ibn-Hanbal, I, 69 ; again, at-Tirmidhiv. an-Nasa’Iy, etc.,
as quoted by KanzuU'UmYn&U Vol I, No. 4778.
9 KanzuWUmmBl (I, 4759) quoting al-Bukhariy, at-Tirmidhly, an-
Nasa’iy, Ibn-Sa'd and others.
* Cf. I bn- Hi sham, pp. 1014-15; Kashful- Asrdr of *Abdul-*AzIz al-
Bukharly (Comment, of Pazdawly), Vol. Ill, p. 188:
ji; IL Awi f
<3 <3 1*^ $) A-US (JLjo
ITS ROOTS AND SOURCES
17
portions of the then revealed Qur’an. 1 This continued up
to the very death of the Prophet, when besides the above-
mentioned documentary material, there were at least four
persons who had committed the whole Qur’Sn to memory. 2
The number of those who committed the whole 114 chapters
of the Qur’Sn to memory (the Jj.afi?es) increased rapidly, 3
as this brought worldly gain, public honour and official
dignities. 4 The hafizes (reciters from memory) and qaris
(reciters reading artistically) up to this day give certificates
to their pupils recording that they had heard the Qur’Sn
in the very order of verses and chapters, and also the chant
and intonation, which they transmitted to their pupils, from
their teachers, and they from their teachers, — all named,
-“linking the chain back to the Prophet himself.
The first successor of the Prophet, the Caliph AbG-
Bakr, in spite of his all too short term of office (about two
years only), arranged that a fair copy of the whole text of
the Qur'an should be made in the form of a book (mu&af) ;
the order of the verses was to remain as prescribed by
the Prophet. The commission entrusted with the work
required two authentic written copies 5 of the fragment dealt
with, besides having to tally with what was memorised by
the hafizes. The task was duly brought to a successful end ;
only regarding one or perhaps two small passages no more
than one written evidence was found. 6
This unique copy of the official edition remained
with the Caliph; later his successor, the Caliph ’Umar,
used it, after whose murder, it was in the custody of his
* Ibn Hi sham (^Sl\ *)« P- 226.— Ibn Sa’d, 3/1, p. 192.
• * Ibn Sa‘d, 2/1, pp. 112-13 ; Bukhariy, ch. Fada’ilul-Qur’an, § Quits’.
* Alone in one detachment of Caliph ‘Umar, they numbered once
three hundred ( cf . Kanzul-Ummal, I. 4030).
* E.g., cf. Kanzul-Ummal, I. 4030, on the authority of Ibn Zanjueh.
* Ibn Sa’d, quoted by Kanzul-'Ummcll, I, 4764. Cf. Bukhariy. ch.
Fada'ilul-Qur’Sn, § Jam’ul-Qur’Sn.
' Bukhariy. ibidem, also 93 : 37, 75 : 33 (3) ; Ibn Sa’d, quoted by Kanzul-
’ Ummal , I', 4772, 4801, 4802.
2
18
MUSLIM CONDUCT OF STATE
daughter, 1 Hafsah, the widow of the Prophet. It was in
the time of the third Caliph, ‘Uthman, that difficulties
began to arise in the provinces. The Caliph, therefore,
ordered seven copies to be made from the official edition
prepared for the first Caliph, and these copies were sent to
different provincial capitals of the Empire, the original
being returned to Hafsah. The Caliph ‘UthmSn gave
orders that even the spelling 2 of the official copies must
be followed, and that all those private copies that were
found to differ from the official edition had to be collected
and destroyed. 3 What we now possess is the publication
of the Caliph ‘Uthman just referred to.
Bibliography : Prof. Mufti ‘Abdul-La$if, —
Aslam Jairajpuri, — Nawab ‘Aliy,
yjjl***. — Noldeke-Schwally, Geschichte des Qorans. 2 vols.
(The work has been continued by Bergstrasser and
Pretzl).— Goldzieher, Richtungen der Qoranlesung.
2. The Sunnah.
The second source of Muslim International Law, in
order as well as importance, is the Sunnah or the hadith
which comprises what the Prophet said, did, or tolerated. In
quantity, the rules of Muslim International Law found in
the traditions of the Prophet far surpass those in the
Qur’an. In quality, the hadith is considered inferior to
the Qur’an, yet this seems to be in view of the difficulty of
proving the genuineness of a tradition. Otherwise the
Qur’an itself has expressly and unequivocally put the word
of the Prophet on a par with the Qur’an, 4 on the basis that
what the Messenger uttered on behalf of the Sender is taken
as the Sender’s word.
1 Bukhariv. 66 : 3. 93 : 37.
1 Qastallaniy, jjsVa 1 *•*•♦*, I, 406.
* Bukhariv. 66 : 3. — Kanzul-'UmmSl, I, 4799.
4 Cf. Qur’an, 53 : 3-4, 33 : 21. 59 : 7, etc.
ITS ROOTS AND SOURCES
19
The compilation of the traditions of the Prophet was
begun in his own lifetime by his Companions, this besides
many official documents, such as treaties, instructions to
tax-collectors, letters, charters, census reports 1 and the
like. 2 The thousands of traditions taken down by the
Companions, and still more orally transmitted to their
pupils (who, or their pupils, wrote them down), have an
interesting history of their own. Modern scholars believed
for long that the compilation of ljadith in written form
began two hundred years after the Prophet’s death. Many
contemporary Muslim savants showed the baselessness
of this allegation, such as al-Kattaniy, Shibli, Sulaiman
Nadwi, and only recently Prof. Manazir Ahsan of the
Osmania University, in an exhaustive manner, after which
it is not necessary for me to discuss the subject any further
except to remind my readers that the material on the life of
the Prophet is to be found not merely in books on hadijh.
Bibliography: al-Kattaniy, ^Uii
aJUIj
ijy±\ j, J* CUSK JU I
* AjOuaJI
Vol. I,pp. 114-238
Vol. II, pp. 168-446 iJU.1 ^4).
— Shibli, OjJuo, Vol. I, Introduction. — Sulaiman
Nadwi, OLAi. (i.e„ Madras Lectures ), 2nd ed.,
lecture 3 (also published in the monthly Ma arif, A zam-
garh, India, February 1926 and translated into English by
the Islamic Review, Woking, England, sometime later.
— Manazir Ahsan, Juj-xo. in the Research Journal
of the Osmania University (ax*1»
1 Bukhariy. 56 : 181, No. 1.
a Cf. and also my Corpus des Trails et Lettres
diplomatiques de Vlslam. The first collection dates from the time of the
Companions.
20
MUSLIM CONDUCT OF STATE
Vol. VII.— For the written documents of early times see
also M. Hamidullah, Documents sur la Diplomatic Musul-
mane cl Vipoque du Prophete et des Khalifes Orthodoxes,
(Paris, 1935), Vol. 2, Corpus des Trails et Lettres dip-
lomatiques de I’Islam. — Idem, ^ X-*— U**J1
iwJMyi Xiilil ^ (Cairo, 1940), comprising only the
Arabic texts with many additions to the French Corpus.
— al-Khatib al-Baghdadiy, (MS. Berlin).
3. Orthodox Practice.
Just as the practice of the Prophet, so also that of his
successors has attracted a variety of authors. It is to be
found in books of kadtth, of history, of biography, of case*
law. of anthologies and other publications. No special and
exclusive collections were ever made of the practice of
either the Prophet or his Caliphs regarding international
intercourse. Even if attempts have been made, they are
not exhaustive.
It goes without saying that the precedents of the time
of the Orthodox Caliphs may be accepted in addition to the
traditions of the Prophet and not against them. It may,
however, be observed that if a practice of the Orthodox
Caliph is proved beyond dispute, and it goes against some
tradition of the Prophet, there will be strong’ reason to
presume that the Orthodox Caliphs, who knew l}adith more
thoroughly than any of the later jurists, acted on the
authority of some other tradition of the Prophet, abrogating
the one against which the practice in question is to be
weighed. This is only theoretically possible, for I know no
such concrete case.
In Muslim jurisprudence, the Companions of the Prophet,
though never considered as infallible as the Prophet, enjoy
considerable veneration. Their piety and their devotion
to their Leader could never have induced them to violate
deliberately the prescriptions of the Prophet; and if one,
ignorant of the law, acted in some way contrary to it,
others would at once have corrected him. This, however,
ITS ROOTS AND SOURCES
21
does not exclude the difference of opinion between them
regarding matters for which there was no provision in the
Sunnah of the Prophet. In such cases preference is given
according to the personal eminence of the conflicting authori-
ties, the opinion of any of the first four Caliphs, for instance,
prevailing over the opinion of other Companions.
4. Practice of Ordinary Muslim Rulers.
The practice of the Orthodox Caliphs has legal authority.
Not so the practice of other and later Muslim rulers. Still
it might be useful to refer to it at times, especially when
their practice has not been repudiated by the contemporary
or later jurisconsults. Some of the Umaiyads and Abbasids,
Salahuddin the Great (Saladin), Awrangzeb in India and
many other Muslim rulers have left many a useful precedent
the importance of which cannot be ignored.
The records of this, too, must be sought in a variety of
sources. Its reliability must depend upon the reliability of
the individual source. It must, however, not be overlooked
that this category of authority for rules of international law
is accepted on the condition that it does not contravene the
Qur'an or the Sunnah or Orthodox Practice.
5. Opinion of Jurists.
From the very beginning Muslim writers on jurisprudence
have divided opinion into two kinds of unequal importance,
the Ijma (consensus) and Qiyas (individual analogical
deduction).
(a) Ijma.
Various sayings of the Prophet are cited to bless this
consensus of opinion, as for instance :
(0 My people will never be unanimous in error.
(XJiUJt JL.1 e*£*uM)
(it) The hand of God is over the collectivity, and who-
ever quits it, is sent to hell. o**
22
MUSLIM CONDUCT OF STATE
(Hi) What Muslims agree to be good is also good in
the sight of God. I > !«*» »*
And many more to the same effect. Even verses of the.
Qur’Sn are quoted to support the same.
According to Islamic jurisprudence, whenever unanimity
is reached among the Muslim jurists of a time, this consensus
has the same validity as “ a verse of the Qur’Sn or the most
reliably proved tradition of the Prophet ; and whoever
denies its authority is to be considered an infidel.’’ 1 The
authors, however, agree in theory that a later consensus may
abrogate a former. 2
In spite of the importance of Ijma, it is curious that
ho institution of a permanent character was devised to
ascertain it. Records abound that the Prophet always con-
sulted* his Companions in legal as well as political matters.
Again, the Caliph ‘Umar seems to have found, in the pil-
grimage to Mecca, an easy and convenient annual institution
to consult the governors of his wide-stretched empire, to
hold a general and all-empire appeal session of the supreme
court, to meet deputations from far off parts of the realm,
etc. For a generation or two after the Prophet, it seemed
that the ascertainment of the best and most expedient
opinion of the country was considered to be a government
business. Soon, however, civil wars and schisms ensued,
and the rulers contented themselves with the opinions of
the official jurisconsults, the personae gratae among them, and
general consultation fell in desuetude. The consequent
result was that private students and scholars of law cultivat-
ed the science, and the question of Ijma' became a mere
fiction, since there are no means of collating the data except
private research into an imponderable and ever-increasing
literature. Again, there are no sanctions to declare individual
authors worthy of submitting their opinion for the decision
‘ J* Voi. Ill, p. 261.
* Idem, p. 262.
* Cf. the Qur’anic commands thereto, 3 : 159, 42 : 38, 47 : 21, etc.
ITS ROOTS AND SOURCES
23
of a case by a consensus, and obviously not every ordinary
member of the Muslim community all over the world, now
numbering by hundreds of millions, can have a say in any
such matter.
•
Bibliography: I ^
with text of and commentary on Pazdawiy’s
work, Ch. £1*?!, Vol. II, pp. 226-266. — by
at-TaftazSnly, in loco. — by ash-Shafi*iy, p. 65. Any
and every book on Muslim jurisprudence (aJUJI
in loco.
(b) Qiyas.
Individual opinion of jurists and political scientists has
had a very subtle division, according to its nature, in Muslim
jurisprudence. Analogy, deduction, equity, responsa pruden-
tium, judicial decisions, other opinions of individual authori-
ties as expressed in their books or otherwise known— all
have different technical names and different grades of
precedence. I need not enter into a detailed discussion of
them. I would rather classify the literature wholly or partly
dealing with Muslim International Law. The more impor-
tant classes are the following :
(i) Works on Siyar or international law proper.
(it) Works on Fiqh or compendia of law ( corpus juris).
(tit) Works on Fatawi and aqdiyqh or collections of
judicial decisions, case-law, responsa prudentium and the
like.
(iv) Works on political science, sociology and allied
subjects.
(v) Works on administrative and public law.
( vi ) Works on Nasd'ili al-muluk or text-books for
princes in the art of government and rulership.
(vii) Works on general or particular history, biography,
political poetry and allied subjects.
(yiii) Works on tactics and strategy.
24
MUSLIM CONDUCT OF STATE
(ix) Proceedings of Conferences.
(x) Modern works on Muslim International Law.
I need not discuss in detail each class of these works.
A selection of the more important of them will be given in
the bibliography, at the end of this monograph. However,
I may mention that works on MaghSzi (battles of the time
of the Prophet) have expressly been omitted from this
classification, as they, as well as biographies in general of
the Prophet, properly belong to the second source, i.e.,
Sunnah, discussed above.
During my studies, I have come to the conclusion that,
although there is no dearth of works on political science
and practical advice to princes in any civilisation of yore,
which incidentally deal also with rules of international
intercourse — books of Aristotle, Kautiliya's Artha Sastra,
political writings of Confucius, etc., illustrate the point — yet
I found no trace of the divorce of international law from
political science or law in general before the Arabs. As has
been already mentioned, Abu-Hanifah seems to have been
first in the field and the siyar literature formed an independ-
ent branch of legal science. Books on law, even before
Abu-Hanifah, have been referred to, which we shall discuss
presently; but no monograph on international law (siyar)
has to my knowledge been attributed to any jurist before
AbQ-Hanifah (d. 150 H.).
It is perhaps not unnatural that every nation seems to
pay attention first to legal literature. Codes or compendia
of law seem to have come into existence in Islam in the
very first century of IJijrah. In any case the
(or the corpus [juris]) attributed to Zaid-ibn-‘AlIy
(d. 122 H.) has come down to us 1 and contains chapters on
1 Published under the title : Kitab al-Majmv ? , corpus juris di Zaid ibn
Ali (VIII S. Chr.) la pi ii antica raccolta di legislazione e di giurisprudenza
musulmana finora ritrovata, testo arabo publ . . . per la prima volta sui mss.
iemenici della Bibliotheca Ambrosiana, ... da E. Griffini, Milano 1919.
(Brockelmann mentions in his G. A.L. a fiqh-hadlth work, of the kind of
Muwatts', by al-'Amirly (d. 120 H.). But according to of
ITS ROOTS AND SOURCES
25
siyar or international law. So also the Muwa\\d' (U»>U)
of Malik (d. 179 H.) has special chapters on our subject.
Thenceforward, practically no Islamic corpus juris was
devoid of chapters on international law, entitled variously
siyar, maghazi and jihad.
The same is true of works entitled Fatawi or collec-
tions of cases, judicial decisions and responsa prudentium.
One of the earliest of them is attributed to the Caliph ’Aliy,
compiled by some of his pupils, though it has not come
down to us. Originally such works came into existence
either as collections of judicial decisions of individual judges,
—one such is attributed to Ibn-Rushd also — or compilations
of the replies of private jurisconsults. In later times, even
compendia of law were given this name. The Mughal
Emperor Awrangzeb ‘Alamgir of India appointed a committee
to codify Muslim law, and the result of their labour is known
as Fatawi ‘Alamgiriyah, 1 and is still looked upon as great
authority.
I may also refer in this connection to learned bodies
and academies. Collective deliberations have naturally a
greater chance of arriving at the proximity of reason and
truth than individual labours. Islamic history has recorded,
even in classical times, associations of savants, and they
have had a very great influence over Muslim thought. I
shall not discuss the famous Ihfawan as-§afd, which, to me,
was more of a philosophical concern than juristic. I cannot,
however, proceed without referring to the Law Academy
founded by Abu-IJanlfah, which, though not as yet
thoroughly studied, had very great influence on the codifica-
tion and systematisation of Muslim law. It is said* that
there were forty members of it, all legists yet each having
al-Khatib. he died in fact in 159 H. Being a senior contemporary of Malik,
he may have compiled first, yet his work has not come down to us.
* Sometimes also known as Fat&wi Hindiyah.
Vol. 1, 32-33. Aiiy Vol. II. 179. f Ll
26
MUSLIM CONDUCT OF STATE
special qualifications. Some were philologists, others logi-
cians, still others historians of orthodox times, to elucidate
the precedents and their background, and so on.
This leads me to international Muslim conferences. I
do not know of any instance in classical times of conferences
for international law or even purely for law. Yet many
social evils are traced to certain laws and conventions, and
hence even social and political conferences should not be
neglected in this connection. For instance, the usurious
habits and. transactions of banyas in India and Jews elsewhere
in ancient times could not be without effect on Muslims, to
whom both giving and taking of interest is religiously
forbidden, yet unless provision is made in the country for
lending- money without interest there is much to prevent
Muslims in need of money for emergency purposes from
falling into the evil of at least giving interest on loans.
Thus, a conference of Muslim savants and leaders of all
over the world met in Madinah in 973 H„ and discussed the
problems, political as well as social and moral, affecting the
Muslims of those days, and resolved how to deal with them.
The minutes and proceedings of this important conference
were published by one of the delegates, as-Saiyid Abul-Fath
alias Shaikh ‘Abd al-Mun‘im al-Baghdadiy, under the title
Multfitdr al-Kawnain. Unfortunately there is no trace of
the complete work now ; only a part of it exists in a private
library in India. The original text is not yet edited, but a
Hindustani translation was printed some years ago under
the title^o^i^ ^ which has been analysed and review-
ed in Islamic Culture, January, 1941.
A few words about modern authors.
As with many other subjects of Arabic literature, the
interest of non-Muslim Europeans in Islamic laws of war
and peace has preceded the determination of modern
Muslim scholars to deal with the subject. These are a few
of the more important books or articles by European
authors : .
(t) H. Reland, Instituts du droit Musulman relative d la
ITS ROOTS AND SOURCES
27
guerre , trad, du latin par Ch. Solvet, 1838.
(it) Institutions du droit Mahometan sur la guerre avec
les Infiddles , trad, de Varabe par Ch. Solvet.
(tit) Haneberg, Das muslimische Kriegsrecht (in : Ab-
handlungen der philoso.-philolog. Bayrisch. Akademie
der Wissenschaft, 1869).
(iv) E. Nys, Le droit des gens dans les rapports des
Arabes et des Byzantins (in : Revue du droit international
et legislation comparee, 1896, Bruxelle, pp. 461-87).
(v) C. Huart, Le Droit de guerre (in : Revue du Monde
Musulraan, Paris, 1907, pp. 331-46).
( vi ) Idem , Le Khalifat et la guerre sainte (in : Revue
de l’Histoire des Religions, 1915, pp. 288-302).
(vu) E. Fagnan, Le D jihad selon l’ecole malekite
(Algiers, 1908).
< [viii ) Th. W. Juynboll, Handbuch des islamischen
Gesetzes (1910, Leiden-Leipzig), in loco.
(ix) F. F. Schmidt, Die Occupatio im islamischen Recht
(in : Der Islam, 1910, pp. 300-353).
(x) Polemics during the Great War of 1914-18 ; the
following may be noted :
(a) Snouck-Hurgronje, Heilige Oorlog Made in
Germany (in : De Gids, January 1915).
(b) C. H. Becker, Deutschland und der heilige Krieg
(in : Internationale Monatschrift, 1915, Sp. 631-662).
(c) Snouck-Hurgronje, Deutschland und der heilige
Krieg, Erwiderung (in thb same, Sp. 1025-1034).
(d) C. H. Becker, Schlusswort (in the same, Sp.
1033-1042).
(e) F. Schwally, Der heilige Krieg des Islam in reli -
gionsgeschichtlicher und staatsrechtlicher Bedeutung (in
the same, 1916, Sp. 678-714).
(xi) Hatschek, Der Musta'min ein Beitrag zum inter-
national Privat- und Volkerrecht des islamischen
Gesetzes, Berlin, 1919.
(xii) W. Heffening, Das islamis'che Fremdenrecht, 1925.
28
MUSLIM CONDUCT OF STATE
Further, there is a vast literature on Khilafat in Russian,
German, Italian, French, English, etc. A useful resume of
it was published in the Revue du Monde Musulman (now
published under the name: Revue des E'tudes Islamique,
Paris) of 1925.
We must also not neglect the various books on the
history of modern international law in which the contribu-
tion of Islam has been discussed and described. For instance.
Walker, in his A History of the Law of Nations (vol. I,
Cambridge, 1899), Bordwell, Law of War between Belligerents ,
(Chicago, 1908), Nys, E'tudes de droit international public et
de droit politique, and also in his Les Origines du droit inter-
national (Paris, 1894), Holtzendorff, Handbuch des Vdlker-
rechts (1885, in the first of the four vols.) and others.
As for Muslim writers, the need was felt, so far as I
know, as early as the nineties of the last century. Writing
a history of international law in general, Ibrahim Haqqi of
Istanbul deplores the non-existence of works on Muslim
International Law. In a characteristic passage, after discus-
sing the contribution of Islam in about a dozen pages, he
says : —
Ojsa-Lo v/vLoL~J1 f | jvsl ja.U Oblil ”
«£&> J.L jiWl *>l*Jl Jy iiLoyaa. jtb Ja. aJj!
jSli tAl^a. j j* t>
«.*35LoU* Jill jjo eryiXLo
y OUUSjo *Jyl f&’ J**.
8^ la. <a> ‘ySL* JLa* sjoULJIS
yJ^ClS } uaj J Lo JaI tA^<^Lu>l ^UXa.
ji «/ulsO£ j ^iljl j < a LSi y uc
tfL i/ulja»l* Uj tj w o yaa y iaHIjI ^mIIS
,_$Ul* «£&Tjl Cjlol ( _ 9 *ilsua^ J_ya > SoJ^oya a. JjjJI
» iWU i/iulysa
ITS ROOTS AND SOURCES
29
8*^1 ‘rw-rv ^ JjuJI gv.) 13 )
jU<aS ^ wO S^5 Jyobuil j il« ifuUlill iftJ^ L o V . aJ&*»
. (ir*r ouLm* ^ m + l *
That is :
“ By these few notes, my humble purpose is to point out
that the Muslim peoples have been the pride of humanity.
They made extraordinary progress in every walk of life, and
surpassed the Westerners in every respect during the Middle
Ages. Therefore, they cannot have completely ignored
this important branch of civilized life, namely, the rules of
international intercourse, and cannot but have made re-
searches into and written works on this subject. Yet what
is to be done ? The achievements of the great Muslim
authors have partly been destroyed by the People of the
Cross and by the Tartars, and partly lie hidden in the corners
of libraries. Consequently, it is above my capacity to give
details in this respect. And, it is a sacred duty of the
ulama to conduct researches and prove the superiority of
classical Muslim authors even in respect of international
law.”
A co-citizen of this author of ours, Ahmad Rashid,
cherishes the same notions even in 1937, and asserts :
“En effet, aucun livre n’a paru jusqu’a present qui
exposat, dans leur ensemble, les vues de l’lslam en ce
qui concerne le droit des gens.” 1
Still Mr. Ahmad Rashid has not shirked the task of
taking responsibility on his own shoulder as best as he could,
hence his lectures in the Academy of International Law of
The Hague. I have, however, come to know of the follow-
ing monographs on the subject before the Hague lectures
just referred to :
(t) Negib Armanazi, of Damascus, L’lslam et le droit
international, thesis, Paris, 1929.
1 L’lslam et le droit des gens , par Ahmed Rechid (in : Recueil des Cours,
Acaddmie de droit international. The Hague, 1937, II, p. 378).
30
MUSLIM CONDUCT OF STATE
(it) The same, Arabic edition with certain’ additions,
*—*s**J 3 Damascus, 1930.
Cut) Saba, L'Islam et la Nationality , thesis, Paris, 1933
(with acknowledgement to the bibliography of Cardahi ;
but I could not identify the nationality of the author).
(tv) M. Chaigan of Teheran, Essai sur Vhistoire du droit
public, thesis, Paris, 1934.
(v) Die Neutralitat im islamischen Vdlkerrecht, by the
writer of these lines, thesis, Bonn a/R, 1933, (published
1935).
(vi) Abul-A‘la Maududi of Delhi, 3 >1^4-1 com-
prising articles originally contributed to the Hindustani
bi-weekly al-Jamiyat of Delhi, published in the series
of Darul-Musannifin, A'zamgarh, 1348 H.
(vtt) Ahmad Rashid, just referred to above, 1937.
(inti) The present monograph, begun in 1929, submitted
in 1933, revised and published first in 1941.
Other monographs, of even earlier date, on modern
expositions of Jihad will be mentioned in our general biblio-
graphy in an appendix. ‘Abdurrahim, in his Principles of
Muhammadan Jurisprudence (Calcutta, 1911, cf. Ch. XII),
has some penetrating remarks on the subject. But he has
not yet found time to devote on some special monograph on
the subject.
6 . Awards of Arbitrators and Referees,
By arbitration, mediation, reference and similar terms
we understand the fact that two parties to a conflict agree
to abide by the opinion of a third and impartial person.
There are cases of this kind not only in internal but also in
international conflicts. The difference between these various
terms will be seen later. It will suffice if we mention here
that such awards have always been held as useful precedents,
and generally have been referred to when similar cases arose.
The more so when in such awards there are set forth the
principles on which the opinion of the arbiter was based.
ITS ROOTS AND SOURCES
31 '
7. Treaties.
Another important source of international law comprises
treaties. Sometimes they are bilateral and sometimes
multilateral, and obviously they bind only the parties there-
to. We shall deal with them in detail later, but it may be
pointed out here that there are no precedents in Islamic
history of all the states of the world 1 adhering to a treaty, and
the reason is not far to seek. Communications and economic
interdependence, as also restrictions on foreigners, were
not so far developed in those days.
In connection with treaties, it must be recognized once
for all, that there are certain rules in Muslim law which
are imperatively compulsory and for ever
These cannot lose their binding force except when, and so
long as, one is in extreme stress and unavoidable necessity
“ Except one who is driven by necessity, neither
craving nor transgressing, it is no sin for him " 3 is the
oft-repeated Qur’anic provision. And hence the maxim
Ol (stress renders the forbidden permis-
sible). 3 Again, there are rules in Muslim law which though
not compulsory yet their execution is praiseworthy
Thirdly, there are those whose performance or omission is
left to the discretion of individual persons
It is regarding only this last category of acts that custom
and treaty impositions are upheld and rendered valid by
Muslim law. And as explained above, treaties concluded
under stress against the injunctions of canon law
are binding only so long as the necessity remains. Rules
regarding the repudiation of treaties will be discussed in a
subsequent chapter.
It is to be noted that treaties are sometimes wholly and
deliberately law-making between the parties concerned ; on
1 In modern times also there are only a very few universal treaties,
such as the Postal Convention of Berne ; and the Muslim states have
adhered to them.
* Qur’an, 2 : 173, 5 : 3, 6 : 120, 6 : 146, 16 : 115.
1 SarakhsIy,^^5Ul IV » 479 -
32
MUSLIM CONDUCT OF STATE
other occasions they refer incidentally to legislation in an
international sense.
8. Official Instructions.
The next source is contained in official instructions to
generals, admirals, ambassadors, delegates and representa-
tives, in short to those officials who have some connection
or other with the conduct of the state in international affairs.
These may be published, or confidentially given out and
kept secret. They often contain important material for our
subject. From the very time of the Prophet down to our
age we find this practice continued. A few of the more
typical documents containing such instructions will be given
in an appendix.
9. Internal Legislation and Unilateral Declarations.
Although the whole of international law is, in a sense, part
of the internal legislation and law of the land, yet we must
distinguish between general rules of international conduct
and particular rules concerning particular states or particu-
lar classes of foreigners. Again, there is a difference between
rules correlated and reciprocated and between rules that
have no counterpart. To illustrate this last point, we may
refer to the command of the Prophet that non-Muslims
should be expelled from Arabia 1 where they can no longer
settle, and the Qur'anic injunction that non-Muslims cannot
enter the Grand Mosque of Mecca. 8
10. Custom and Usage .
Very little has so far been written, from a scientific
point of view, on the place of custom, usage, conventions
and the like in Muslim law, although the validity of such
things as ‘ urf , ‘ ddah , taamul and umum al-balawa has been
recognised in Muslim jurisprudence without much dispute.
* Bukhariy, 55 : 176, 58 : 6, 64 : 83. — Muslim, Vol. V, p. 75. — Ibn-Hanbal,
1, 222.— Ibn Sa‘d, Vol. 2/1, p. 44.— Wensinck, in loco .
* Qur'an, 9 : 28.
ITS SOURCES AND ROOTS
33
Of course much heart-burning is caused by indiscreet ways
of putting things, and we must not disregard the difference
between saying that “ all your relatives will die before you ”
and “ you will live longer than all your relatives/’ a real
difference, which, as the story goes, caused one astrologer
dishonour and brought to the other untold riches on the
part of their royal master. By the utter disregard of these
human weaknesses, we shall be doing service to nobody.
Modern European writers, for instance, say : Muslim law
was greatly influenced by Roman law — and of course this is
liable to cause resentment. A great Orientalist of Jewish
descent has, for instance, denied any influence of Roman law
on Muslim law, still he maintains that Jewish law has influ-
enced it, basing his argument on the presence of Jews in
Madinah in the time of the Prophet. All such conclusions
and allegations were inspired by objectionable motives ;
hence they do not give the whole picture, affected as they
are by narrow vision.
This is not the proper place to make a thorough study
of the question. 1 Yet I may be misunderstood if I do not
make it clear why custom is to be considered as one of the
sources of Muslim law in general and of Muslim Interna-
tional Law in particular.
We have seen under source No. 2, that what the
Prophet tolerated among his Companions rendered it valid
and lawful. The very “ toleration ” ( , as it is termed)
implies the recognition of custom, no matter old or new,
as a source of law. As for later times the all-pervading
maxims 2 (everything that is not prohibited is
1 Sec, however, the note of a lecture of mine, in Islamic Culture ,
January, 1939, pp. 125-126, and my extension lecture in the University of
Madras : CLAjSy* 3 (i.e..
Foreign Influences in the Development and Codification ot Muslim Law),
not yet published.
* Cf. Qur'an, 4 : 24, 6 : 120 : " Lawful unto you are all beyond those
mentioned ” ; “ And He hath explained unto you that which is forbidden
unto you.”
3
34
MUSLIM CONDUCT OF STATE
permissible), and J»l» (custom or rule of convention
is decisive) 1 leave not the slightest doubt that custom and
usage, with certain qualifications, are lawful sources of
rules of conduct for the Faithful.
We must, however, not confuse laws of the Muslims
and Muslim laws. By the former I understand the laws
which certain sections of the vast Muslim community
observe, for instance, the customs regarding inheritance,
marriage, etc., prevailing among Muslims in the Malay
Peninsula, Berberland of North Africa, the Punjab, Bombay
and Malabar in India and the like, — customs very much at
variance with the tenets of what the Qur’an and the Sunnah
have expressly laid down.
Regarding Muslim law proper, we know that Islam
began in Mecca, full of pagan Arab traders who constantly
travelled abroad. Later its centre of gravitation moved to
Madinah when the Prophet migrated to that place, where
Jews also lived in thousands. Not a decade had passed
since the Hijrah when the boundaries of the Muslim State
crossed with those of the Persian and Byzantine empires.
A decade and a half still later, in the year 27 H., a we see
the armies of Islam penetrating even into Spain, to remain
1 There are some more from ash-Shaibanly’s writings :
^xJb vJUjUJK I, 194) : Evidence of
custom is like that of the text of a statute.
(idem, IV, 23,25) : To learn through custom is like prescribing in the text.
wXUuj cx* JjXkU (idem, IV, 16) : A general may
be rendered a particular by evidence of custom.
l 151 *>M\ (idem, I, 198) : Usage
is decisive when not prescribed otherwise in the text.
t^&Jl JJlkyo •**&&** ^3 £>IaJI (idem, II, 296) : Usage is valid
to particularise a general rule.
* Tabariy, Annales , I, 2816-17 ; Ibn al-Athir, Kamil . III, 72 ; Abul-
Fids\ I, 262 ; Dhahably, at-Tarikh al-Kabir, anno 27 ; cf. Gibbon, Decline
and Fall, V, 555 (ed. Oxford University Press).
ITS SOURCES AND ROOTS
35
there until 'Jariq came many generations later to complete
the conquest, when the Islamic State, like a colossal
crescent, spread from the Pyrenees to the mountains of
China, crossing Persia, Mesopotamia, Syria, Arabia, Egypt,
Turkman, Armenia, and all the coastal countries of North
Africa. Thus it came into contact with the Meccans and
other Arabs, as well as with Jews, Christians, Greeks,
Spaniards, Persians (Magians), Buddhists of Turkistan and
Chinese of Sinkiang, — to mention but a few of the more
civilised peoples of those times of whom Islam made many
converts. Histories mention that not much difference is
to be found between the pre-lslamic pagan pilgrimage and
the Islamic Hajj, which is one of the five basic elements
of Islam ; that the Caliph ‘Umar is reported to have
adopted in toto the Persian revenue laws when that empire
was absorbed into Muslim State ; that the greatest number
of jurists Islam has produced came from Bukhara. Turkistan
and adjoining countries where Buddhist and Chinese
influence predominated ; that the pupils of the Companions
of the Prophet and their pupils, the teachers of Abu-
Hanifah, Malik, ash-Shafi‘iy, Ibn-Hanbal and others were
generally mawali of non- Arab origin who could not obviously
have forgotten all that they knew of the existing and
prevalent conditions of pre-lslamic origin in their countries
and even families ; that Abu-IJanifah himself had a Persian
father and an Indian mother ; that there are express
commands in the Qur’an 1 to follow the laws of Moses,
Jesus, Abraham and other Messengers of God, and it is
reliably recorded that the Prophet ordered 2 Muslims to
follow the practice of the Jews and Christians in matters in
which there was no provision in Muslim law ; that not only
were many pre-lslamic Arab customs tolerated by the
* Qur’an, 6 : 84-91 : (“ so follow their guidance ”) ; 3 : 95, 16 : 123 ;
(“ Follow the religion of Abraham ").
2 E.g., 2*^ in connection with combing.
36
MUSLIM CONDUCT OF STATE
Prophet, but he went so far as to prescribe
JiLaij 1 (in Islam the virtues of the days of
Ignorance [in Arabia] will be acted upon). No doubt, legal
rules of Byzantines, Persians and others did not come into
Muslim law with any sanctity attached to them, but simply
as a matter of convenience and expedience and because they
were not against the injunctions of positive Muslim law.
Their infiltration may be traced to a very great extent
to the customs and usages of the country occupied by
the Muslims.
Thus we see that notwithstanding the fact that many
customs and usages, conventions and habits were amended
or even abolished by Islam, there is no denying the fact that
the very large remainder contributed, to a considerable
extent, to Muslim law as one of its sources. 2 (Cf. also my
article “ Influence of Roman Law on Muslim Law ” in the
Journal of Hyderabad Academy, Vol. VI.)
Retrospect.
We can see now that the relevant portions of the Qur’an
and the Sunnah form permanent positive law of the Muslims
in their international dealings ; state legislation and treaty
obligations establish temporary positive law ; and all the
rest provide non-positive or case-law and suggested law
respectively.
• Ibn-Hanbal. HI. 425.
Itf
* For a detailed enumeration see among others I of Ibn- Habib
(ed. Hyderabad, 1361 H.. pp. 309-40). §
Ol %
CHAPTER VII
The Place of International Law in Law General
BY' law we mean the rules which the government of a
state passes or approves for the conduct of its whole
gubernatorium and its subjects. Thus, the rules of conduct
for that part of the gubernatorium which is concerned with
foreign relations will be international law. This may more
clearly be appreciated in the following division of law which
we humbly suggest :
LAW
(1) Moral and State Law
Ethical Law applied when
parties to the
1
parties to the case
one party to the
case are states are private individuals
case is a state, the
other a private individual
r
(2) when both are
i
when one is part-
when both are part-
independent
sovereign
1
sovereign (3)
f
1
(4) suzerain state
part-sovereign state
v. its part-
v. state other than
dependent state
its suzerain
(5)
(6) subject v.
subject v.
foreign resident v.
subject
foreign resident
foreign resident
(? )
(8)
f
Muslim State v.
Muslim State v.
1
non-Muslim State v.
its subject
foreign resident
resident Muslim alien
(9)
(10)
(id
38
MUSLIM CONDUCT OF STATE
We have no direct concern in international law with
No. 1. Nos. 2, 3, 4, and 5 comprise law governing inter-
governmental relations. These along with Nos. 10 and 11
form public international law. Nos. 7 and 8 belong to private
international law. And Nos. 6 and 9 comprise law of the
land in its narrower sense which is also called civil law and
municipal law as distinguished from the international law of
a state. It may, more appropriately, be called for our pur-
poses internal law.
CHAPTER VIII
The Contribution of Islam to the Internationalising of
Human Society
THE perplexing complexity of human society is but a reflec-
tion of human nature. A mixture of contradictory elements,
or, I should rather say, of both good and evil simultaneously,
—though of varying grades,— the most rational being, man,
at times surpasses the angels and at others even the Devil
would look shy before him. Consequently, among other
things, human society has been the object of two tendencies
at the same time. The one centripetal, from independent and
self-contained families into tribes, from tribes into citizens of
city-states, from city-states into vaster states, empires, com-
monwealths and even attempts at world order, — such is said
to be the one aspect of the chequered history of human
society. The other centrifugal, from being relative members
and descendants of one and the same family of Adam and
Eve, 1 differences of colour, language, country, race and the
like have so accentuated the diversity that no insignificant
toll of bloodshed has stigmatised the fratricidal society of
the human species.
It is no use attempting the impossible, either to change
human nature or convert the average being into a rare and
exceptional extremist.
It is to be regretted that in spite of such valuable con-
tribution to different sciences and institutions, the ancients
were not able to get rid of the narrow vision of their
geographical or political nationhoods. Even ancient religions
1 For ethnological unity of man see O. Ehrenfels : “ Ethnology and
Islamic Sciences " (in Islamic Culture, 1940, pp. 434 f.).
40
MUSLIM CONDUCT OF STATE
seem to have been national rather than universal and for the
whole of humanity. Nevertheless these ancient, national
religions also preached in the beginning love and peace. The
chromatic, birth and racial superiority-complex which is
still such a vital force in some parts of Africa, America and
Europe, is, to me, the work rather of pagan and irreligious
generations than the result of commands of the religions they
profess.
Islam has rather been fortunate in discarding, from the
very first day, differences of race and colour, country and
language, in favour of the universal brotherhood of the
Faithful.
See for instance :
The believers are naught else than brothers. There-
fore make peace between two brothers of yours (if they
happen to oppose each other), and observe your duty to
God that ye may obtain mercy. (Qur’an, 49 : 10.)
And hold fast, all of you together, to the cable of
God, and do not separate. And remember God’s favour
unto you : how ye were enemies and He made friendship
between your hearts so that ye became as brothers
by His grace ; and (how) ye were upon the brink of an
abyss of fire, and He did save you from it. Thus God
maketh clear His revelations unto you, that ye may be
guided. (Idem, 3 : 103.)
And obey God and His Messenger, and dispute not
one with another lest ye falter and your wind depart
(from your sails); but be steadfast! Lo! God is with
the steadfast. ( Idem , 8 : 46.)
Lo ! this, your community, is one sole community, and I
am your Lord, so worship Me. (Idem, 21 : 92 ; cf. 23 : 52.)
Islam is a religion of unity and action which safeguards
individual rights and liberties and provides at the same time
for collective welfare. I refer to the institutions of zak&t
and Baitul-Mal. And as its call was not meant, from its very
inception, for any particular country, it was an advance over
what had hitherto been done to internationalise human
THE CONTRIBUTION OF ISLAM
41
society.
Besides this universality of its call, Islam instituted
lyajj and kh,ildfat, which I shall consider one after the other.
Brotherhood of Man
A few typical quotations from the Qur’an alone would
suffice to illustrate my point : —
(a) Creation of mankind from the same couple :
O mankind ! Be careful of your duty to your Lord,
Who created you from a single soul and from it created
its mate and from them twain hath spread abroad a
multitude of men and women. (Qur’an, 4 : 1.)
O mankind ! Lo ! We have created you from a single
male and female, and We have made you nations and
tribes that ye may distinguish one another. Lo! the
noblest of you, in the sight of God, is the one who
feareth [Him] most. Lo ! God is Knower, Aware.
(Idem, 49 : 13.)
Other verses to the same effect, cf. 6 : 99, 7 : 189,
39:6.
(b) Mankind is one community :
Mankind were one community . . . (Idem, 2 : 213.)
Mankind were but one community ; then they
differed ; and hath it not been for a word that had'
already gone forth from thy Lord it had been judged
between them in respect of that wherein they differ.
(Idem, 10: 20.)
(c) Islam’s universal call :
[Muhammad !] thou askest them no fee for it [t.e.,
Islam]. It is naught else than a reminder unto all
nations. (Idem, 12 : 104 ; cf. 81 : 27.)
And We have not sent thee [O Muhammad !] save as
a bringer of good tidings and a warner unto all mankind ;
but most of mankind know not. (Idem, 34 : 28.)
And We sent thee not [Muhammad] save as a mercy
for all nations. (Idem, 21 : 107.)
(d) Difference of colour and language explained :
42
MUSLIM CONDUCT OF STATE
And the difference of your languages and colours, lo !
herein indeed are portents [of the mastery of the
Creator] for men of knowledge. (Idem, 30: 22.)
And We have made you nations and tribes that ye
may distinguish one another . . . (Idem, 49 : 13.)
(e) Toleration par excellence :
Lo! those who believe [in that which is revealed unto
thee, Muhammad], and those who are Jews, and
Christians and Sabeans, — whoever believeth in God and
the Last Day and doth right, — surely their reward is
with their Lord, and there shall no fear come upon
them neither shall they grieve. (Idem, 2 : 62.)
Lo! those who believe (i.e., Muslims), and those
who are Jews, and Sabeans and Christians — whoever
believeth in God and the Last Day and doth right —
there shall no fear come upon them neither shall they
grieve. (Idem, 5 : 69.)
And a host of other verses, especially 3 : 64, addressed
by the Prophet to foreign rulers, together with innumerable
sayings of the Prophet and instances of continuous practice
all through these fourteen hundred years of Islam, testify
to the same effect.
I pointedly invite attention to quotations under ( b ) and
(d) that in Islam the differences of men in colour and language
are but phenomena testifying to the great mastery of the
Creator; and that not only all human beings descended
from the same couple but that even their religions have had
the same source. Quotations under (e), which have twice
been repeated in the Qur’an, are very significant, and show
clearly that if the people of the religions cited therein
follow fully all the commands of their original religion, shred
of later additions, there is no fear regarding their salvation.
What use of international law if it does not aspire to
cultivate harmony between nations ?
Hajj or Pilgrimage to Kdbah.
Islam is ultra-national in its ethnological and other
THE CONTRIBUTION OF ISLAM
43
current senses. So the brotherhood of the Faithful, which
Islam has inculcated, is truly international. And for the
purpose of fostering this brotherhood and causing greater
contact between the members of the Muslim community
spread all over the world, the institution of or pilgrimage
to Mecca, its cradle, has played a prominent role almost
from the beginning of Islam. IJajj is one of the five “ duties
for each and every one ” to be observed by the
Muslims. Every Muslim, male or female, must perform at
least once in life the pilgrimage to the House of God in
Mecca, if he or she “ can find a way thither.” 1 Arabia lies
in the midst of the three continents known as the old world.
Thus, Mecca is even geographically the centre of the old
world, or to adopt the technical term used by the Muslims,
it is situated on the “ navel of the earth " The
pilgrim is required to put off his ordinary clothes and every
one wears a simple and humble iJiram, leads a life of great self-
control, abstains from enjoyment or fulfilling passionate
desires, during the kajj period of his stay in or around
Mecca. It is really an awe-inspiring scene to see king and
clown dressed alike, standing shoulder to shoulder during
the services, and one actually feels the demonstration of the
Qur’anic description of Doomsday : “ With whom shall lie
the power supreme on this day ? With God, the One, the
Almighty."* A really cosmopolitan gathering, and a complete
equality of the children of Adam is nowhere else to be found.
Such is the annual hajj of Islam.
Khildfat.
Another internationalising institution of Islam is the
Kbilgfat (Caliphate). When the Prophet breathed his last,
the Muslims of that time came to the conclusion, with the
exception of perhaps two or three individuals, that there
could be only one ruler for the totality of the Muslims.
Although the Muslim empire soon spread far and wide
1 Qur’an, 3 : 97.
* Idem , 40 : 16.
44
MUSLIM CONDUCT OF STATE
outside its birthplace, Arabia, yet practically for more than
a hundred years the unity of the Muslim empire remained
intact. Muslims all over the world, subjects of the Muslim
State as well of non-Muslim states, all recognised the Caliph
in Madinah, or later Damascus, as the Commander of the
Faithful. After the Umaiyad dynasty of Damascus, the
Muslim world was divided first into two and later even
more independent states. Yet the idea of the succession to
the Prophet could not be eliminated from the Muslims. The
very claim for this by more than one Muslim ruler at a time
supports the contention more than it contradicts it.
There has been no difference of opinion among the
Muslims as to the desirability of the institution of a central
caliphate except for the insignificant and now almost extinct
sect of the Kharijites. The difference among the Sunnis and
the Shi'ahs is only regarding the person chosen for the
purpose immediately after the Prophet. Somehow or other,
the rightfulness of ‘Aliy, a cousin and son-in-law of the
Prophet, and his descendants, to the post has become a part
of dogma with the Shi‘ahs, while the Sunnis as a matter of
fact say that Abu-Bakr, ‘Umar and ‘Uthman were elected by
almost the unanimous vote of the community, and succeeded
to the temporal power of the Prophet one after the other
before ‘Aliy himself was finally chosen for the purpose at
the tragic murder of ‘Uthman, and that even ‘Aliy did not
lag behind in paying homage to and co-operating sincerely
with his predecessors in the office.
There is, however, still an opportunity of easy disposal of
this matter, since neither of these respected figures is now
alive. It cannot be denied that the Prophet functioned as a
spiritual guide as well as a temporal leader of the Faithful.
As far as the spiritual heritage is concerned, there is almost
unanimity even among the Sunnis, except a branch of the less
numerous Naqshbandiyah order of §ufis, that it was ‘Aliy
who was the immediate successor of the Prophet. Again, as
far as the temporal power is concerned, all agree that it is a
transitory thing, and even the Sunnis do not believe that
THE CONTRIBUTION OF ISLAM
45
Abu-Bakr had any right to the post other than the fact that
he was elected by the overwhelming majority. Thus the
difference resolves itself into the question of fact whether
the Prophet had or had not nominated 'Aliy as his immediate
temporal successor. Obviously the question is not of any
practical importance to-day, after thirteen centuries have
revolved since the demise of the persons concerned. The
Sunnis do not mind ‘Aliy’s being styled the J y»)
(Executor of the will of the Messenger of God), since legally
an executor ' and a beneficiary of a testament are not
co-equal.
Nomination by the reigning Caliph of his successor,
failing which a general election, must obviously have been,
and was in fact, a matter of course, among the Shi’ahs as
well as the Sunnis at all times.
CHAPTER IX
The History of International Law Before Islam
MONTESQUIEU has rather bluntly remarked :
“ Toutes les nations ont un droit des gens ; et les
Iroquois mSmes, qui mangent leurs prisonniers, en ont
un. Us envoient et re?oivent les ambassades, ils
connaissent les droits de la guerre et de la paix : le mal
est que ce droit des gens n’est pas fonde sur les vrais
principes." 1
But which people has not once been primitive and
even savage ? I need not dilate here on the causes that led
to the early or late appearance of different peoples in the
society of civilised nations. Further, I do not need to
point out that man is the most receptive of created beings ;
yet it must not be lost sight of that, given similar circum-
stances, men, more often than not, think alike ; and it will
be absurd to conclude that the later in time must unavoid-
ably have borrowed his ideas in all cases from those who
lived earlier.
It is not necessary here to refer to the history of
international laws of other nations in any detail except in
so far as they may have contributed to the development of
Muslim International Law. The known history of Man
begins with the Sumerians, naturally very hazy. There
were facilities of intercourse between the peoples of the
valleys of the Tigris and the Euphrates. The people of
Syria, however, had the greater advantage of utilising the
1 Esprit des Lois, livrc I, ch. 3, p. 7 (Paris 1860) : all the nations possess
an international law, even the Iroquois who eat their prisoners. They
send and receive envoys, they know the rights of war and peace. Only-
trouble is that this international law is not based on right principles.
HISTORY OF INTERNATIONAL LAW BEFORE ISLAM 47
accumulated experience of past ages along with their own
gifts and resources. People of the Mediterranean sea-board
possess, therefore, ‘ peculiar interest. Their intercourse led
not only to interchange of commodities but even of ideas.
Great civilisations have flourished successively in Egypt,
Syria, Carthage, Greece, and Rome— all situated on the
Mediterranean. The peace treaty between the Egyptian
Ramses II (Sesostris, who ruled between 1292-1225 B.C.)
and the King of the Hittites of Northern Syria, designed in
the treaty as Hitaser (chief of Hitai, now the Turkish Hatay )
is probably the oldest diplomatic document that has come
down to us in the original, a silver tablet in this case,
inscribed in the Hittite language. It stipulated not only the
end of the great Syrian war and perpetual peace between
the two kings under the protection of the deities of both the
countries, but also an alliance against the enemies of both
the contracting parties. The trade and industries of both
the nations were to be immune. Convicts of one country
taking refuge in the other had to be extradited, but it was
expressly provided that certain kinds of punishment could
not be inflicted on the people so extradited. 1 The Phoenicians
gave Greece such an elementary requirement of civilisation
as the alphabet. The Hebrews or Jews, another Syro-
Palestinean people, evolved a peculiar culture of their own
under Moses and the Divine Pentateuch. The Jews were
sworn enemies of some foreign nations, as the Amalekites
for example, with whom they declined to have any peaceful
relations whatever. When they went to war with these
people, they killed not only the warriors on the battlefield,
but also the aged, the women, and the children in the homes
(see Samuel XV for instance). With those nations, how-
ever, of which they were not sworn enemies, they used to
have international relations. Ambassadors were considered
sacrosanct and treaties were faithfully observed. 2 The
1 Holtzendorff, Handbuch des Volkerrechts , 1, 168.
* Oppenheim, International Law f I, 55-56 (4th ed.).
48
MUSLIM CONDUCT OF STATE
influence of the Jewish Bible has continued to exert itself
on the world through European nations who embraced
Christianity, Jesus Christ himself being born among the
Jews.
We now pass to on Europe. The Greeks were greatly
influenced by Phoenician culture, but the system of inter-
national law they evolved was essentially law between city-
states of the Greek peninsula. All non-Greeks were termed
barbarians, and Aristotle asserted that “nature intended
barbarians to be slaves " 1 of the Greeks. Plato, 2 although
he advised his countrymen to be more lenient in their mutual
treatment, never entertained the idea that non-Greeks
deserved any share in the milder treatment he proposed.
The public law of Greek nations (subjects of different city-
states are meant thereby), was considerably developed, and
even a sort of League of Nations was established by many
of these cities. The covenant of one such league, the
Amphictyonic League of Delphi may be quoted with
interest :
“ We will not destroy any Amphictyonic town nor
cut it from running water in war or peace ; if any other
shall do this, we will march against him and destroy his
city. If any one shall plunder the property of god or
shall be cognizant thereof, or shall take treacherous
counsel against the things in his temple at Delphi, we
will punish him with foot and hand and voice, and by
every means in our power.” 3
For a detailed study of Greek International Law, The
International Law and Custom of Ancient Greece and Rome
(2 vols.) by C. Phillipson and its admirable bibliography
would be useful.
Rome conquered Greece politically yet soon it was re-
conquered by the Greeks, intellectually. The Romans evolved
* Politics , bk. I, ch. 7.
* Cited by Lawrence, Principles of International Law , p. 15 (6th ed.).
9 International Law by Wilson and Tucker, p. 16 (8th ed.).
HISTORY OF INTERNATIONAL LAW BEFORE ISLAM 49
their own laws. They set a college of priests, called
fetials, who managed relations with foreign countries when
war was declared, peace was made, treaties of friendship or
alliance were concluded, when Romans had an international
claim before a foreign state or vice versa. The life and
property of the citizens of a state which had no treaty of
friendship with Rome, were not safe in the Roman territory;
such persons could be made slaves and their property seized.
Only ambassadors were exceptions. Citizens of a friendly
state had a right to legal protection ; and justice was
administered to them by the prxtor peregrinus.t
The Roman Empire ruled over Syria and Egypt also.
Thus it had common frontiers with Iran, and hence the
vicissitudinous wars for centuries together between the
two rivals. The Roman Empire was later divided into two,
and it was the Eastern Roman Empire of the Byzantines with
which we are concerned. Obviously this Eastern Empire was
more intensely influenced by Greek than its counterpart in
Rome. Nevertheless, it was the code of Justinian, adopted
from laws of Rome, that regulated life in countries where the
Arabs had direct commercial and other interests. Roman
laws of peace, more especially private international law,
could be regarded as fairly developed, yet the laws of war
were in the main based on the discretion of individual com-
manders, and we can glean the rules of belligerent conduct
in the wars waged against the Persians and others.
The Arabian Peninsula had common frontiers with both
the Byzantine and the Persian Empires. Both these Empires
had carved out for themselves colonies, protectorates and
even buffer-states of purely Arab peoples. As we have
already seen, what we call Muslim law has not been develop-
ed by Arabs only ; people from Syria, Iran, Egypt, Turkistan,
etc., co-operated from the very first centuries of its develop-
ment. The researcher in the history of Muslim International
1 Cf. Oppenheim, International Law, I, 59-61 (4th ed.).
7
50
MUSLIM CONDUCT OF STATE
Law will deal with Roman, Persian, Buddhist and other
systems of ' international law. For me it will suffice to
describe conditions in Arabia only, from the point of view
of international law, since it was the rules prevalent in this
country that were in the main utilised by the Muslims with
adaptation, amendment, addition and adoption.
Pre-Islamic Arabia
At the dawn of Islam, early in the seventh century of the
Christian era, Arabia presents itself as a vast congeries of
innumerable independent political groupings, based primarily
on tribalism. The tribes were either nomad or settled.
Even members of one and the same tribe were, more often
than not, divided into these two kinds. The settled Arabs
had generally their own city-states. “ Each city had its
surrounding territory, large enough — but not unnecessarily
extensive — to allow of the convenient assembly of its free
citizens, for the purpose of exercising the rights and dis-
charging the obligations incidental to citizenship . . . Though
the Arabs spoke a common language, took part in common
fairs, consulted the same oracles, worshipped the gods in
common [and to a great extent observed the same customs]
yet their separation into independent city-states rendered
possible the evolution of law governing the relationships
between them in their capacity of sovereign powers. The
position of such autonomous communities cannot be said to
be fundamentally different from that, say, of the European
States from the point of view of the operativeness and
applicability of an international law. It is true that the
intrinsic kinship of the Arabs stamps them as practically
one nation, even though subdivided into different munici-
palities. But international law requires for its development
the existence of independent political communities, not
necessarily different in race, language, religion, or anything
else . . . The characteristic note of each city was competence
and self-sufficiency . . .The intense genealogism of the Arabs
HISTORY OF INTERNATIONAL LAW BEFORE ISLAM 51
prompted an attitude of civic seclusion. The spirit of
separateness, of isolation made political unity impossible. To
the Arab, his state, i.e., his tribe and tribal settlement O'*
and was no vapid abstraction, but a living reality. He
was bound to it by an almost indissoluble tie ; he was ready
to give up his life for it, since he was indebted to it for his
privileges, for his dignity, for his very existence . . .The Arabs
as Arabs cherished aspiration for unity, but as citizens their
constant aim was decentralization ; and their claims of
citizenship invariably triumphed over those of racial kinship.
Although their genius was so versatile, they found free
scope for its exercise within the circumscribed limits of
their respective city-states and settlements. They con-
structed no great works of engineering skill. Their con-
cern was with the conquest of the intellectual dominions
(poetry, I mean) rather than with the establishment of
territorial empires. Their nature is characterized by the
love of art , 1 as a contrast, for example, to the love of
knowledge attributed to the Greek, and to love of wealth,
attributed to the Phoenicians and Egyptians. They may
have proved incapable of political unity, but they were
possessed of that intellectual unity which marks the true
civilization of a people. ” 2
In remoter antiquity, especially in Yaman, veritable
empires had sprung up, thanks to the amenities of life that
were provided there by nature, yet at the dawn of Islam
even there chaos ruled supreme and the older kingdoms
and empires had disintegrated into petty townships. The
territories under foreign domination such as ‘Uman, Bahrain,
etc., were rather better off, although even there division into
1 See further : The City-State of Mecca ( Islamic Culture, July 1938),
p. 275.
* Adopted mutatis mutandis from what others have written regarding
others, yet so true of Arabia also. Regarding the conditions of Mecca,
the birthplace of the Prophet, see my article, The City-State of Mecca,
( Islamic Culture, July 1938).
52
MUSLIM CONDUCT OF STATE
nomads and the settled obtained.
Not only the city-states of Arabia, but even the large
number of wandering tribes could be dosed with the same
physic of political personality. In political autonomy they
were inferior to none. Territory they did possess, although
they lived in different seasons of the year in different parts
of it. They also had their own political organisation. They
administered justice, they waged war and concluded treaties
just as any other state.
Bellum omnium contra omnes has so often been pictured
as the normal condition of Arabia. It may be true to a
certain extent. But if we concede to the Arab tribes same
privileges as are possessed by independent States, — and
why not ? — the horror vanishes. A man without political
nationality and passport cannot expect much better treat-
ment even in our modern times. The perpetual strife of
tribes in Arabia, however, is no denying the fact that the
Arabs managed, somehow or other, how to live a peaceful
life also. For instance, they evolved the institution of the
months of the truce of God ^^f) 1 which so much
mitigated the hardships reserved for unallied tribes. Again,
they developed the escort system to the pitch of fine art,
which was another factor in saving life and property in the
midst of hungry Beduins. An interesting and important
quotation from a classical author gives a glimpse of this
great institution : —
“ Every trader who set out from Yeman or Hedjaz for
Dumatuljandal (in the extreme north of Arabia), acquir-
ed the services of the Quraishite escort as long as he
travelled in the country inhabited by the Mudarite tribes,
since no Mudarite nor ally of the Mudarites harassed
the Quraishite traders. So, the Kalbites never harassed
them as they were allied to the Banu-al-Jusham ; and the
1 Cf. Islamic Culture (July 1938), pp. 267-268 ; Proceedings of the 2nd
Session of the Idarah Ma'Srif Islamiyah, Lahore, pp. 98-99 ; Hyderabad
Academy Journal , V. 96 et. seq.
HISTORY OF INTERNATIONAL LAW BEFORE ISLAM 53
Tayites also never harassed them because of their alliance
with BanQ-Asad . . .When they intended to go to ‘Iraq,
they acquired the services of escorts of BanG-‘Amr-ibn-
Marthad (of the clan of Qais-ibn-Tha‘labah). which
protected them in the whole of the country inhabited by
the tribes of Rabi‘ah . . .When going to al-Mushaqqar in
Bahrain, Quraishite escorts were sought . . . Then the
fair of §uhar, in ‘Uman, which assembled on the first day
of the month of Rajab and continued for five days. And
al-Juland5-ibn-al-Mustakbir taxed them there a tithe.
Then the fair of Daba which was one of the two major
ports of Arabia. It was visited by traders from Sindh,
India, China, people of the East and the West . . . When
going to the fair of Maharah, in the southern extremity
of Arabia, escorts of Banu-Muharib were employed . . .
In the fair of Aden, however, no escorts were
needed since it was a state-territory and of good
order ... In the fair of Rsbiyah
in Hadramawt, the Quraishites were escorted by the
Banu-Akil-al-Murar and the rest of the people were
escorted by Al-i-Masruq of Kindah. It brought glory
and eminence to both these tribes. Yet the Akil-al-
MurSr superseded their rivals on account of the patron-
age of the Quraishites 1 . . . ‘Ukaz was the greatest of the
Arab fairs, and was visited by the tribes of Quraish,
Hawazin, Ghatafan. Aslam, Ahabish, ‘Adi, ad-Dish,
al-HaiyS’, and al Musfaliq. ” *
There are innumerable instances of individual escorts in the
pre-Islamic history of Arabia. 3
* Cf. Olinder, The Kings of Kinda of the Family of Akil-al-Murdr
(Lund. 1927).
* Muhammad-ibn-Habib (d.245H.),^£*'^S- J l**(ed. Hyderabad), ch.
Fairs of Arabia, pp. 263-68.
* E.g., at-Tanukhlv. (MS. Leningrad), Story
No. 32, with acknowledgment to my class-mate in Bonn, Dr. Leo Pauly :
“ V; U J1 iU 5 ’*
54
MUSLIM CONDUCT OF STATE
Another item of the law of nations was the system of
“ ilaf or pacts ” developed by the Meccans.
They concluded pacts, or rather obtained charters from the
rulers of Syria, Abyssinia, Iran, Yaman, etc., in order to
bring caravans of trade to their respective territories, in
perfect immunity. The Meccan magnates promised the
many tribes inhabiting on their trade-route to these different
countries to carry their goods as agents without commission
for commercial purposes, or otherwise concluded treaties of
friendship and immune transit through their respective
territories.* The services of this organisation were available
even to the people of foreign countries, such as Iran, on
payment of necessary remuneration . 3
Tribal alliances for particular purposes or permanent
co-operation were also in great vogue, in all parts of the
country. Many ceremonies were observed at the time of the
“ signature," interchange of drops of blood in wine before
drinking it . 4 besmearing with scents , 3 lighting fires
cutting tufts from the forehead and cutting the nails of the
contracting parties and burying them under the subsoil of
some lake , 7 and many such things are recorded at different
occasions, besides the more common shaking of hands. Prof.
Krenkow once told me that he had read somewhere in
( Continued )
Again al-Marzuqiy, II, 161 :
** j*>s u 11
1 Muhammad-ibn- Habib, op. cit., p. 162.
1 Ya'qubly, I, 280 ff. ; Ibn-Sa‘d, 1/1, pp.43, 45; Tabarly, Annales, I,
1089; idem, Tafsir, Vol. XXX, Surah lldf ; Lisan al-'Arab, s.v. Ilaf;
Lammens, La Mecque a la veille de VHtgire , p. 128, etc.
* Fraenkel, Aramdisch. FremdenwOrter, p. 176 ; idem, Schutzrecht, p. 296 ;
Lammens, La Ripublique marchande de la Mecque, p. 25 if. ; Ibn-Sa‘d, 1/2,
p. 32 ; — cited by Heffening, Das islamische Fremdenrecht, p. 89.
* Dinawariy. p. 353 ; Ya‘qiibiy, I, 288.
* Ya'qtJbly, I, 288.
* Qalqashandiy, I, 409 (cf. idem in loco).
* Dinawariy, p. 353.
HISTORY OF INTERNATIONAL LAW BEFORE ISLAM 55
classical Arabic literature a way to deposit a treaty in safety.
The document of the treaty was simply torn into two pieces,
and each contracting party kept half of it, and whenever
there was need to refer to its terms, the two pieces were
joined. Of course there is less possibility of falsifying in
this case ! The treaty of the social boycott of the family of
the Prophet by the Quraish was hung in the sanctuary of
Ka'bah. 1 Special formulae also seem to have been in vogue
(cf. ^^1, Ibn-HishSm, p. 297).
This leads us to envoys. There is a vast literature on the
subject of Arab chieftains visiting foreign rulers, 8 and foreign
ambassadors coming to Arabia. The Yamanites sent an
envoy to Ctesiphon to ask for Persian help against the
Abyssinians. 3 The dam of Ma’rib, in Yaman, still preserves
the long inscription of Abrahah, who repaired it, stating
that on a certain day he received ambassadors of several
foreign rulers, including the Byzantine Emperor. 4 Instances
of inter-tribal and inter-municipal embassies in Arabia are
innumerable. The Meccans twice sent envoys to the Court
of the Negus against the Muslim refugees. 3 Before his
Islam, ‘Umar was the hereditary ambassador-spokesman
( ^ of Mecca ; and in the words of Ibn-‘ Abd-
Rabbihi “ whenever there was war, they sent ‘Umar as their
envoy plenipotentiary ; and if and when a foreign tribe
challenged the priority of the Quraish it was again he who
went and replied, and the Quraish agreed to what he
uttered. ” 6 The person of an envoy was always considered
inviolable j, JjS jJ U—
1 Ibn-Hisham, p. 231.
* Ibn-Hajar, s. v. ^ ; Ibn-Sa‘d, 1/1, pp. 43, 45 ;
Tabarly, History , I, 1537 ; al-Masndly, Muruj , IV, 250 : “ ‘Umar met many
a King before Islam ” ; al-Isbahaniy, Aghant, XII, 48-49, etc.
1 Ya‘qubly, I, 187. 4 Sulaiman Nadwl, ^ 319.
1 Ibn-Hisham, pp. 217-21, 716-17.
• joyLll jJuJ 1, II, 45.
T Sarakhsly, X, 92.
56
MUSLIM CONDUCT OF STATE
Although there was no unity in Arabia, in the sense
that there was no one central authority for the whole of the
desert Peninsula — so much so that in the words of Well-
hausen there was “ ein Gemeinwesen ohne Obrigkeit ” 1 (a
community without superior authority) — yet it cannot be
denied that strong tendencies were already working, before
Islam, for a centralised unity. We have seen how the escort
system had already embraced the whole country, from
Mecca to Bahrain, from Dumatuljandal to Maharah. I can
go even so far as to conclude that already an economic — as
distinguished from political — federation had been accom-
plished in the Arabian Peninsula.* For, when we study the
question of fairs in Arabia, we learn a very curious story.
Mu^ammad-ibn-Habib 3 and al-Marzuqiy 4 record it on the
authority of Ibn-al-Kalbiy that the sequence of the fairs was
as follows :
No. of month Dates Place
1
10-30
Khaibar
3
1-30
Dumatuljandal
6
1-30
al-Mushaqqar (Bahrain, now
Hasa)
7
20-25
§uhar(‘Uman)
7
30-?
Daba (‘Uman)
8
15-?
Shihr (Maharah)
9
1-10
Aden (Yaman)
9
15-30
San'S' (Yaman)
11
15-30
Rabiyah (Hadramawt) as well
as ‘Ukaz (near Ta’if), simul-
taneously
12
1- 8
Qbul-MajSz (between 'UkSz
and Mecca)
12
9-11
Mina (place of hajj, just out-
side Mecca).
This is the title of a monograph of Wellhausen.
Cf. my article in Hyd. Acad. Journal, V o 1. V.
Op. cif., pp. 263-68. 4 ZXSi) \ 3 II, 161-70.
HISTORY OF INTERNATIONAL LAW BEFORE ISLAM 57
Looking on the map, one finds at a glance that this means
a tour of the whole of Arabia, from North to East, from
East to South, from South to West and from West to North.
Our authors have particularly mentioned that these were
not local fairs but were attended by people from far-off
parts of the country and even from abroad. For instance,
they have mentioned that the Meccans attended the fairs of
DQmatuljandal and Rabiyah ; or, that ‘Ukaz was attend-
ed by Aslam, Ghatafan and others. They also mention
that many of the traders went from one fair to another,
naturally not to all. Again, these were the All-Arabia fairs
5 1 otherwise there were many other
important though rather provincial fairs like Majannah, 2
Badr, 3 HubSshah, etc.
Another evidence of centripetal tendencies in Arabia was
the common arbitrators. These arbiters, soothsayers and
other diviners were resorted to by all people irrespective of
tribe and clan. ‘Amir-ibn-az-Zarib and others have left
many anecdotes of their impartiality, the reason for which
they were trusted and respected. 4 * * * 8
Among other international laws of peace in Arabia, we
1 Idem , p. 161.
3 Al-MarzHqiy, op. cit.„ II, p. 161, footnote ; cf . Sa l id al-Afghamy,
(ed. Damascus),
3 Tabariy, History , I, 1307, 1460.
4 Cf. “ Administration of Justice in Early Islam/* Islamic Culture *
(April 1937); Majallah ‘ Uthmdniyah ,
XI/1-2 ; Histoire de V Organisation judiciaire en pays d’ Islam by E. Tyan,
Vol. I, pp. 30-80 ; criticisms and additions on the above by Gaudefroy-
Demombynes in Revue des Etudes Islamiques , April 1939.
8
58
MUSLIM CONDUCT OF STATE
come across asylum and quarter refuge, 8 naturalised
and domiciled aliens extradition, 3 hospitality
of foreigners,* and even laws of shipwreck.*
Last, but not least, I may mention in this connection the
famous Order of Chivalry, l}ilf al-fudul , inaugurated in the
time of the Jurhumites and revived again during the adole-
scence of Muhammad, the Prophet of Islam. Its adherents
swore to side with anyone oppressed, be he a co-citizen or a
foreigner, within their city limits, and not to give up his
cause unless justice was done. 6 (For other organisations,
called against the mischief of those who would not
observe the months of the truce of God, functioning in
different fair-centres, cf. History of al-Yaqubty, Vol. I,
pp. 314-15.)
Obviously, the laws of war were much more developed.
1 E.g ., Ibn-Hisham, p. 251 ; Tabariy, History , 1, 1203. For details, Ibn-
Hablb, op. cit. pp. 167-68. It is curious to note that the same word Mauld
has been used by the Arabs to denote the protector as well as the
protected. The word c 7dr, which is probably older still, has the same dual
significance. (Cf. the expressions and This
cannot be due to lack of vocabulary or want of precision for a language
like the Arabic which is nothing if it is not extraordinarily rich and
precise. Nor can it be a mere accident in words more than one. To me
its significance can never be too much exaggerated. For, it imports not a
mere equality ; it is more than that. It implies an unification, an
assimilation, a re-humanisation of the human society after its long feuds.
There might we search the background of the fraternity of the Faithful of
the days of Islam !
* Cf. X.—U-AI Europe, pp. 365-66) verses of Abu-Khirgsh
hXft. Le dot Om\>j j>\
8 There are innumerable cases when a vendetta was prevented thereby.
4 Waqidly (ed. von Kremer), p. 23.
8 Al-Azraqly, ^UaLt (ed. Europe), pp. 106-107.
• Ibn-Hisham, 'pp. 85-86; Suhailxy, i t 90-94; Ibn-Sa'd,
1/1, p. 41; Musnad of Ibn-Hanbal, I, 190; vjWl, MS.
Hyderabad, in loco .
HISTORY OF INTERNATIONAL LAW BEFORE ISLAM 59
Declaration of war, 1 treatment of enemy person and pro-
perty, prisoners of war, 3 distribution of booty,* special
privileges of the commander of the expedition, 4 spies,*
hostages («y^*>), 8 truce and armistice 7 and parleys 8 and a
host of other matters, even distinctive uniforms, 9 were
treated in a more or less regularised manner, no matter how
harsh or lenient.
Even 'neutrality was not unknown, and considerable
material is available on the subject which we shall deal in
Part IV of this monograph.
* UaJO £>>1 (cf. 3 jZ* MS. Brit.
Mus., Or., 6492, fol. 22a, b.).
» UVI XII, 47 ; Tabarly, History , I, 2207 ; C-JK 3
* Cf. any dictionary, s. v. £b
4 Cf. *Abdallah-ibn-Ghanmah :
'JyaiJl 3 ±k~ZJJ \ 3 3 bljLaJI ^b jL\ bU
quoted by the lexicon s . v. £b jo and by as-Sarakhsiy, al-
Mabsut, X, 9. The commander had a right over (1) a fourth of the booty,
(2) any other thing which he chose before the distribution, (3) anything
captured before the general plunder, (4) any fraction which was indivis-
ible. For the "fourth" cf. also Tabarly, History, I, 1710.
* They were of two kinds, viz., eye-spy (^*) and ear-spy
taken notice of even by the Qur'Sn.
* JaiUii, pp. 93, 462 (various kinds).
1 i. aw.
8 Bakr wa Taghlib , (MS. Brit. Mus.), fol. 216.
8 For instance, in the protracted war of Bakr and Taghlib, once all the
members of a razzia shaved their heads except one who was proud of his
fine hair, and was consequently killed at the hands of his own folk
unawares.
CHAPTER X
The Place of Islam in the History of General
International Law
MODERN international law, in use practically all over the
world, is in fact the law originated in Western Europe.
Speaking of its history, writers habitually begin with the
Greek city-states, describe the Roman period as immediately
following, and then all of a sudden talk of modern times,
neglecting the gap of full one thousand years that intervenes
and asserting that during the Middle Ages : “ For an Inter-
national Law there was ... no room and no need.” 1
We do not know much about ancient Phoenicia, which
gave Greece such an elementary requirement of culture as
script, nor of Iran which was a rival of hers for centuries
together. Otherwise we could have known to what extent
the Greek system of international law owed its origin or
modification to the influences of the city-states of the East.
Again, the influence of Eastern laws on Roman law has
been examined by more than one competent scholar , 2 and I
do not propose to dwell on this topic at this moment. The
main object of this chapter is to examine how far the
assertion of Oppenheim tallies with facts when he states
that there was no international law in Europe during the
Middle Ages, that there was no need of such at that time,
and that there was no intermediary link between the Roman
Period and Modern Times which are separated from each
other by almost a thousand years.
1 Oppenheim, International Law, I, 62 (4th ed. 1928).
* For instance, the French savant Collinet has published several mono-
graphs on the subject.
ISLAM IN THE HISTORY OF INTERNATIONAL LAW 61
As we know, the characteristic feature of the Greek
system was that it concerned itself with the limited number
of city-states, situated in the Greek Peninsula and inhabited
by people of one and the same race, speaking the same
tongue, believing in the same religion, and observing the
same customs, though independent of each other and
jealously guarding this exclusive existence of theirs at no
small cost. The Greek states had, in fact, two separate and
distinct sets of the rules of international law, viz., one to be
observed in relation to Greek people, and the other regarding
the rest of the world. This latter set of rules was less
developed and scarcely systematised.
The chief feature of the Roman Period, on the other
hand, is said to have been this, that their law applied not to
people of one race but to subjects of the Roman Empire as a
whole. This Roman Empire consisted, in fact, of so many
states, more or less owning allegiance to Caesar yet enjoying
to a great extent internal autonomy and home-rule. When-
ever these different states under the sway of Caesar had
some dispute with one another, the matter was referred to
Rome and the decision of the Emperor, in accordance with
Roman Law, was final. This is what our enthusiastic writers
call the successor of the Greek system of international law
and the precursor of its namesake of modern times. Perhaps
one may be entitled to doubt the correctness of this state-
ment. Why not give the name of Roman International Law
to that set of rules which the Romans observed in their
dealings with non Roman countries, in times of war as well as
peace ? These rules might not have been very elaborate nor
greatly developed to the extent of being systematised, yet
they alone would legitimately be entitled to be called Roman
International Law, and not that set of administrative rules
which were applicable only to the component parts of the
Empire itself. It would be simply a misnomer. My impres-
sion. however, is that the Roman International Law of peace
was a great advance on the Greek system (cf. Phillipson’s
62
MUSLIM CONDUCT OF STATE
work) ; yet the Roman law of war remained very much the
same, recognising no right for the belligerent, and using
nothing but discretion regarding the non-Roman enemy.
The modern system of international law, however,
recognises that a belligerent has as much right as a friendly
state in time of peace ; that war does curtail certain rights,
nevertheless many a right of an independent state remains
intact even when the parties find themselves at war with
each other.
How did that come about? The modern European
system is said to be based upon the Roman system, and we
have seen that there was nothing in the Roman Law which
could have suggested this change of attitude. Is it a purely
modern achievement or any influence of Christianity or any-
thing else ?
Let us take Christianity first. Although the European
people began to embrace Christianity very early, yet the
teaching of love inculcated by Jesus ill-suited the develop-
ment of international law. Matthew transmits as the saying
of Christ the injunction : “ Resist not evil, but whoever shall
smite thee on the right cheek, turn to him the other cheek
also. ” Or, “ Render to Caesar the things that are Caesar’s ;
and to God the things that are God’s.” And again : “ Put
thy sword into its place, for all that take the sword shall
perish by the sword.” The Gospel of St. John records :
“ My kingdom is not of this world.” And there are similar
other sayings to the same effect. The early Christian teach-
ing was, as Prof. Nys of Belgium has so clearly described, 1
that a Christian might not only not defend himself by the use
of force, but he might even not ask for the help of the law of
the country to protect him against tyranny. And as Prof.
1 Les Origines du droit international , p. 44 : “ Les preceptes de renonce-
ment preches par le Christ avaient et£ exageres ; non settlement il avait
etc d£fendu aux fideles de se proteger par la force, mais ils ne pouvaient
meme reclaimer le plus legitime des appuis,ils ne pouvaient invoquer la loi
de l'Etat."
ISLAM IN THE HISTORY OF INTERNATIONAL LAW 63
Norman Bentwhich has recognised : “ It was the spirit of
the Hebrew against the Canaanite ” — and, may I add, also the
movement for ‘ back to Rome ’ ? — “ and not the spirit of the
Christian Gospel that moved the people that in the end
became masters of the Roman Empire .” 1 Further, at the
time of the formulation of the theories of Modern European
International Law, Christianity lacked moral force more than
ever. The papacy and clericalism had fallen into disrepute.
Grotius, father of European International Law, for instance,
mentions in the preface to his De jure belli ac pads, (§ 28) as
the occasion of his compiling that book (published 1625), that
in his time the Christian nations of Europe behaved in their
wars in a manner that even barbarians would be ashamed of.
To me it is unthinkable that Christianity should have
provided for the necessary change while the civilised
Christian nations believed till as late as 1856 that the benefits
of their international law were confined to Christian nations ;
and it was no philanthropic or Christian impulse but a sheer
need of practical politics that led them to admit the Muslim
state of Turkey in the society of the civilised nations under
the treaty of 1856. Japan and other non-Christian nations
had to wait still further to have the same honour. Many
people cherished the same notions even much later, and in
1889, Woolsey* still insisted that international law was what
Christian nations recognised as obligatory in their mutual
relations only. According to a Papal bull, the Christians
were not bound by their pacts with Muslims. 3
As Prof. Nys 4 has vividly described, the Muslim occupa-
tion of Jerusalem, that cradle of Christianity, followed by
* Religious Foundation of International Law, p. 87.
* Th. D. Woolsey, International Law (4th ed., New York, 1889), *« loco,
cited by A. Rechid, op. cit., p. 378.
* For a long discussion and citations, cf. A. Rechid, op. cit.. pp. 426-30 ;
Nys, Les origines du droit international, p. 216. Pope Nicolas IV declared
pacts with non-Christians as null and void, cf. Nys, p. 161.
* Op. cit., pp. 141-42.
64
MUSLIM CONDUCT OF STATE
the occupation of Alexandria and Antioch, the two seats of
Patriarchs, and the repeated defeats of Christians at the
hands of the Umaiyads, the Abbasids, the Turks and others
so embittered the clergy that it led the Christian church
itself to augment the horror of war. So much so that monks
and even Popes organised crusades ; and the orders of
Templars, and Hospitalers, the order of St. John and the
Teutonic order and others came into being simply for the
purpose of waging war against Islam . 1 Moreover, as Prof.
Walker 2 has remarked, it was only under the stress of
Muslim fear, that the Christian Europe learned for the first
time during the Crusades, to unite ; and different European
nations fought under the same banner, which they had never
done before in spite of having embraced Christianity and
recognising in the Pope their common superior.
The cultural reaction of Spain and Southern Europe and
of the Crusades cannot be too strongly emphasised. But
there is one more aspect which must not be neglected in this
connection. The earliest European writers on international
law, such as Pierre Bello, Ayala, Vitoria, Gentiles and
others all hailed from Spain or Italy, and they were all the
product of the renaissance provoked by the impact of Islam
on Christendom. Baghdad in the East and Cordova in the
West stood as torch-bearers of Arabian culture, and in
between lay Europe obsessed by the fear of being dominated
and subdued by one or the other of the two mighty empires
of the Arabs.
Luther was a profound scholar of Arabic even as several
Popes and other ecclesiastical dignitaries, not to speak of
innumerable commoners that flocked into Arab Universities
froth all parts of Europe, and studied Arab laws and culture
in their curricula. It was the Latin translation of Arabic
books that supplied the educational needs of Europe for
centuries.
1 Nys, op. cit., p. 143 ff.
* T. A. Walker, A History of the Law of Nations , Vol. I, p. 89.
ISLAM IN THE HISTORY OF INTERNATIONAL LAW 6
selves had cultivated an international law ? This we have
already replied to in the preceding chapters, and we know
that siyar (international law) has ever since been taught
in all Muslim schools as part of Fiqh or Law.
It is clear from this that the Muslims very early develop-
ed a science of international law, and divorcing it from
political science and law general, made it an independent
subject. And when we study the early Arabic works on
international law and allied subjects, we have a vivid idea of
the relations of the Muslims and the Rum (Byzantines) and
others in time of war as well as peace, and we see how
interaction was going on not only in the art of warfare but
also in the very science of international law. In Muslim law
we come, for the first time, across the full-fledged notion of
recognising rights for the enemy in all times, in peace as
much as in war, rights endorsed by the Qur an and by
the practice of the Prophet and his successors. Further,
it is also to be noted that books on jura belli (laws of war) by
Ayala and Vitoria, Gentiles and Grotius and others have
no counterpart in the Roman and Greek literatures, and
they are the product of an age when European erudition
was not so highly developed as to-day. To us, therefore,
they are but echoes of these Arabic works on jihad (war)
and siyar (conduct in time of war and peace). There must
we seek for the link between the Roman and the Modern
Periods, and there must we recognise the origin of the epoch-
making change in the concept of international law. And
we see the role played by Islam in the world-history of
international law.
CHAPTER XI
The Ethical Basis of Muslim Law
IT must have been clear from the description of the origin,
sources, and aim of Muslim Law that it attaches not a
small importance to ethical values. In the beginning, there
was one sole science which occupied Muslim intelligentsia,
that of the commands of their religion. Soon many sciences
had to be cultivated : history, philology, astronomy, etc. ; yet
they all revolved round and were subservient to the all-
embracing Qur’an : history primarily to explain the allusions
in the Holy Book, philology (including poetry) to explain
the exact sense of the words used in it, astronomy and
physical geography to find out the direction of the Ka’bah to
turn towards, as also the timing for the daily religious ser-
vices, grammar to standardise the text and diction of the
Holy Writ, and so on. This Quranic basis of all sciences
controlled the latitude to be exercised by poets and others,
and always checked and pruned the morbid growth of un-
Islamic morality.
When even the branches of law, like our own subject,
International Law, acquired the status of independent and
full-fledged sciences, they still retained their ethical values ;
their provisions had to have the sanction from the Qur’Sn or
the Sunnah or the Orthodox Practice. No Muslim science
was originally cultivated for its own sake, independent and
regardless of others ; but all were made subservient to the
Shari' ah in order to contribute to the well-being of Man in
this world as well as in the Hereafter. Without belief in
Resurrection and Reckoning, man may become more devilish
than the Devil ; and man without enjoyment of what God
THE ETHICAL BASIS OF MUSLIM LAW
67
has created for him would be no man at all. The Golden
Mean is the rule in Islam and this is true
of even such an overwhelmingly materialistic science as
Muslim International Law. And although divorced from
law general and political science, international law of Islam
was not based on mere human reason to be guided by con-
venience but continued to retain its ethical basis of the
unchangeable Qur’an and the Sunnah.
PART II
PEACE
CHAPTER I
Preliminary Survey
PEACEFUL or non-hostile relations of states— in which
cessation of belligerents from fighting without treaty or
settlement is not included— and their rights and duties may
be described under the following heads
1. Independence.
2. Property.
3. Jurisdiction.
4. Equality. '
5. Diplomatic and Commercial Relations.
CHAPTER II
Independence
STATES, whether small or big, are either sovereign and
independent or part-sovereign, or non-sovereign. In inter-
national law no notice is taken of the last of these kinds.
The real criterion of independence, as far as international
law is concerned, is the right to foreign relations. If this
right is absolute, we call it sovereignty and independence ;
if the right is qualified and restricted, but not abnegated and
extinguished, we have a case of part-sovereign state ; and if
the right does not exist, it will be a non-sovereign state.
Apart from this real test, there are other requisites of
INDEPENDENCE
69
independence which we shall describe presently.
It is, however, to be noted that the form of government
has nothing to do with independence. A state may be a
republic with elected heads, or a monarchy with hereditary
succession. Even in the hereditary succession, the Islamic
institution of (oath of allegiance), which has been in
vogue ever since the time of the Prophet, some sort of social
contract and expression of popular will is present. The
Prophet assumed authority through Divine commission,
nevertheless every adherent to his authority had to pay
him homage and allegiance either personally or through
representatives . 1 When the Prophet died, and the Divine
connection, through revelation, ceased to exist, the question
of succession arose. Three propositions were made, viz.,
hereditary succession, popular election, diarchy. The
Prophet left no male issue, and his nearest kin were a step-
uncle and a cousin who was also his son-in-law. As for
diarchy it was the proposal of some of the original inhabi-
tants of Madinah, called the Ansar, who said : Let there be
one ruler from amongst us and another from amongst you,
the Meccans ( <►£*-« ^ ^ «| IL>) •* and apparently both
the rulers had to rule conjointly since it was not possible to
divide the territory ; or at best it implied the division of
jurisdiction of the two rulers according to persons concerned,
not places . 3
* Cf. Wensinck, £jL«J| jyS s. v.
* I bn Hisliam, p. 1016 ; Tabariy, History, 1, 1823.
* The two-rulers theory was rejected by the Muslims of that time not
only on the ground of expediency but also because of the rivalries of the
Awsites and Khazrajites in the AnsSr clans (cf, Tabariy, History, 1, 1843).
Yet Muslim history has left at least one instance of it in Ghaznah. in the
dynasty of MahinUd Ghaznawi : —
iXjlj JLnl Jt * .
> ji?* b ob-^ o' — ob;* oO' obj
jl A) ^ ^ j\ jMj
70
MUSLIM CONDUCT OF STATE
Strict hereditary succession, in the form of the right of
the eldest son, does not seem to have ever taken deep root
in Islamic polity. The Orthodox Caliphate was not heredi-
tary. Among the Umaiyads and Abbasids frequently
brothers or cousins succeeded even in the presence of sons.
The Ottoman Turks had the curious rule of presuming the
eldest member of the royal family as heir. In the Mughal
empire of India, more often than not, the sword and
capability decided the issue. The case of Radiyah Sul$Snah
of India is almost unique, a case of the succession of the
daughter in the presence of several sons.
We may conclude from this and the Orthodox Opinion
that either the nomination by the reigning person of his
successor, or, failing this, a general election by the Pillars of
the State JJ.1 Ja|) is the rule Islam has accepted
whether the nomination is that of the eldest son or not.
In short, form of government and succession to power
are immaterial for an independent state. It remains, how-
ever, to see what is independence and what is state.
Independence.
Independence is defined by Ibn Khaldun 1 as
iiyblS (the non-existence of any [external] power to
enforce its will upon him i.e„ an independent sovereign). In
other words, it is the right of a state to administer all its
internal and external affairs in such a way that it is neither
controlled nor interfered with by any foreign power.
^ *>? *
JiJ <_£i
Futuhus-Salatin by ‘I;3ml, couplets Nos. 1220-25 (ed. Agra. 1938). For
another, cf. infia, § “ Regular parts of dominions and Condominiums. ”
Cf. further, (the Qur'an, 20: 32) for diarchy:
* Prelegomena, ch. 23
INDEPENDENCE
71
The right of a state to freedom of action is but a
reflection of the original freedom of every man (<3
jJ. I This freedom to conduct state affairs is only
relatively complete. Absolute independence has never
existed and is nowhere found in human society. There are
natural impediments testifying to the omnipotence of God
and weakness of man ; there are correlative and reciprocal
restrictions such as the respect of equal rights of others;
there are contractual limitations of one's liberty, no matter
whether accepted originally under force or with mutual
will ; and there are tacit acquiescences of unilateral
declarations if there is no power to resist.
International law cannot apply without the existence of
more independent states than one at the same time. As
a fact several independent states have simultaneously ex-
isted since time immemorial yet the right of this co-existence
was not easily conceded in civilisations of bygone days.
The Greeks were told by their national philosophers that
nature intended the non-Greeks to be slaves of the
Greeks* The Romans, although they never ruled even one
thirtieth of the world, believed that they were the lords of
the earth. The world was regarded by them as orbia
Romcmus, and the Romans were designed as the princeps
orbis terrarum populus .* Obviously, so long as religions were
national, there was no possibility of conceding equality to
others, even when they capitulated. The Jewish law, for
instance, insisted
When thou comest nigh unto a city to fight against
it, then proclaim peace unto it. And it shall be, if it
make thee answer of peace, and open unto thee, then
it shall be, that all the people that is found therein shall
be tributaries'unto thee, and thev shall serve thee. And
if it will make no peace with thee, but will make war
* Sarakhsiy, M g IV, 71.
* Aristotle. Politics , bk. 1, ch. 7.
* Phillipson, International Law and Custom , I, 104.
72
MUSLIM CONDUCT OF STATE
against thee, then thou shalt besiege it : And when
the Lord thy God hath delivered it into thine hands,
thou shalt smite every male thereof with the edge of the
sword : But the women, and the little ones, and the cattle,
and all that is in the city, even all the spoil thereof, shalt
thou take unto thyself ; and thou shalt eat the spoil of
thine enemies , 1 * which the Lord thy God hath given thee.*
Islam believed, on the other hand, in the universality
of the Divine call with which Muhammad was commis-
sioned . 3 It was this conviction which led the Muslims to
aspire at a world order, but we must distinguish between
the domination of a nation based on race or language and
between the nation aspiring to establish on earth the
kingdom of God , 4 * where His word alone (the Qur an, in
this case) should reign supreme . 3 Obviously for Islam it
makes not the slightest difference whether the ruler is an
Arab or a Negro 6 provided he is a Muslim . 7 The Muslims
considered as their own enemies only the enemies of God :
the Polytheists, the Associators or the Atheists. They
wanted to conquer the world not to plunder it, but peace-
fully to subjugate it to the religion of “Submission to
1 Cf. on the contrary, the saying of the Prophet, thac spoils were
legalised to him for the first time, whereas in former religions they were
burnt (Bukhariy, bk. Jihad, ch . legalisation of booty ; Tirmidhiy, bk,5i>jr,
ch. booty ; I, 15; Tabariy, Tafsir , under verses 8:
68, 69— Tabariy, Hist, 1, 1710).
1 Deuteronomy, xx, 10-14. For a contrast with Muslim law, see the
Prophet’s instructions in Appendix A, 1-a infra .
1 Cf. supra , part I, ch. viii, c.
4 Qur’an, 8 : 39,
1 Tirmidhiy bk. Fad&'il al- jihad , ch. ^
3 3 J-SU* cj * J JJU. ’•
“ UXaII ^ JSVS ^ JIS S A! J~--£ viUJ sb,
' Al-KasSniy, gMLaJI VII 99, Cf. also Bukhariv. etc.
( jw»v jA 1 ^ .
' Cf. Qur’an. 4: 59, Jjl j”.
INDEPENDENCE
73
the Will of God,” religion of which they were not the
monopolisers but which was open to all the nations to
embrace and become equals. 1 * * In a word, the Muslim aim
was to spread Islamic civilisation and to realise a universal
Polity based on the equalicy of the Faithful and a system
which provided the basic necessities of all the needy in the
country, irrespective of religion, without in the least impair-
ing private enterpise ( cf . Qur’an, 9 : 60, 8 : 41).
Yet this did not mean that in the meanwhile they
acknowledged no rights to people outside their jurisdic-
tion. The Qur’an enjoins peace with those who do not
want to fight ;* the scrupulous respect of treaties concluded
with non-Muslims,* and is emphatic on the point that the
world belongs to God and He gives His vicegerency to
whomever He wills. 4
State.
States have existed in human society since time
immemorial, and not much has changed in the essentials of
their functions ; and the state officials, from the head to
the lowest, have proportionately exercised more or less
authority over, the commoners and even the lower state-
officials in their private capacity. The question of the
origin of authority, however, is a disputed question in
different schools of thought. Some trace it to the collective
will of the political group, some claim Divine descent or
even Divine incarnation.
So far as Islam is concerned, the classical authors have
been unanimous that it is a delegation of Divine authority,
through the intermediary link of the Messengers or
1 Qur'an, 4 : 123, 49 : 10, 3 : 103 ; etc. Cf. also the oration of the
Prophet at the Last Pilgrimage in the year 10 H. in lbn-Hifham, p. 968-70 ;
Ya'qubiv, II, 122-23 ; Jshi? • 0^1 • II, 24 f.
' Qur’an, 8 : 61.
» Idem, 4 : 90,4 : 92,8 : 72,17 : 34, 23 ; 8. 70 : 32, 2: 177,3:76,5:1,9:7.
4 Idem, 3 : 26, 6 : 134, 11 : 57, 24 : 55 ; etc.
74
MUSLIM CONDUCT OF STATE
Prophets who receive Divine revelation. It may be called
a theocracy. A few typical quotations from the Qur’an will
elucidate the point : —
(а) Lo ! the earth is God’s. He giveth it for an in-
heritance to whom He will. (7 : 128)
(б) And when thy Lord said unto the angels : Lo ! I
am about to place a viceroy in the earth. (2 : 30)
(c) [And God said unto him : ] O David ! Lo I We
have set thee as a viceroy in the earth ; therefore
judge aright between mankind and follow not desire
that it beguile thee from the way of God. (38 : 27)
( d ) Say : O God ! Owner of Sovereignty ( mulk ) !
Thou givest sovereignty unto whom Thou wilt, and
Thou withdrawest sovereignty from whom Thou wilt.
Thou exaltest whom Thou wilt, and Thou abasest
whom Thou wilt. In Thy hand is the good. Lo ! Thou
art Able to do all things. (3 : 26)
And scores of other verses, supported by the sayings
of the Prophet 1 and Orthodox Practice, all tend to the
fact that God is the King of the earth and beyond, and
He delegates authority, for administration in trust, to
man ; and man wields power at His will.
As already remarked, states have existed before the
philosophers and political scientists. I need not dilate on
the minute discussions of what is a state, according to
Muslim scholars, what are the essentials of the Khilafat
or the vicegerency of God, and allied questions which might
more appropriately be discussed in the history of Muslim
political thought. Here it suffices to emphasise two points,
(1) acknowledgement of more than one independent state
at a time and (2) acknowledgement of more Muslim states
than one.
Radiyud-Dln as-SarakhsIv records the opinion of
1 For instance, cited by Sarakhsiv.
jX+Zi] jiwJl I, 15.
INDEPENDENCE
75
Abfl-YusQ^and ash-Shaibaniy in the following words : —
Ur*}* sybUJl U,l*l uawxi Lrl j1oJ\ — ; U^J
' laAA^JI) JUatlXl fLi ^
(*— > 1 ♦ 8 Jjj) (3 (ji *ct»»
i.e. They both maintain: a territory is related to its
people on account of their controlling hand over it and
their establishing protective authority therein.
Regarding the second point, the diversity even of
Muslim states, it is to be pointed out that, though
essentially Muslims constitute but one “nation,” 1 still not
all the Muslims ever lived in Islamic territory, strictly
speaking. Even the Quran refers to it several times : —
(a) “ It is not for a believer to kill a believer unless it
be by mistake. He who hath killed a believer by
mistake, must set free a believing slave, and pay the
blood-money to the family of the slain, unless they remit
it as a charity. If he ( the victim ) be of a people hostile
unto you, and he is a believer, then the penance is to set
free a believing slave. And, if he cometh forth of a
folk between whom and you there is a covenant, then the
blood-money must be paid unto his folk and also a
believing slave must be set free. And whoso hath not
the wherewithal, must fast two consecutive months.
A penance from God. God is Knower, Wise.” (4 : 92)
(b) “ How should ye not fight for the cause of God
and the feeble among men and women and the children
who are crying : Our Lord ! bring us forth from
out this town of which the people are oppressors !
Oh, give us from Thy presence some protecting friend !
Oh, give us from Thy presence some defender ! . . .
They will ask : In what were ye engaged ? They will
say : We were oppressed in the land. They will retort :
1 Cf. (Ibn-Hisham, p. 341), constitution of the Muslim State in
the time of the Prophet, § 2 : 05* O* *^^3
76 MUSLIM CONDUCT OF STATE
Was not God’s earth spacious that ye could A ve migrat-
ed therein ? ” (4 : 75, 97)
This question of minorities is so very old. 1 Apart from
the Muslim minority in foreign countries, there was, how-
ever, in the beginning no possibility of having more than
one Muslim state. When Islam spread far and wide, and
the Muslims did not form a compact whole with continuous
and contiguous frontiers, the division of Islamic territory
into many states was inevitable. As a matter of fact, we
have also to admit the division caused by civil wars and
successful rebellions. So much so that even classical
jurists had to acknowledge this fact. Ad-Dabusly (d. 430 H.\
for instance, is very explicit on the point : —
CMljJI JoJlx> 5 ljlL.1 L J^)l^
jiir'ii visy.- jo obvyi 5
s XyiAJb V\
i e.. The distinguishing factor between the Muslim and
non-Muslim territories is the difference of authority
and administration. The same « true of the different
principalities even within the Islamic territory which are
distinguished from one another by the domination and the
execution of authority ( i.e . Jurisdiction) 2 .
With the downfall of the Umaiyads, Spain became in-
dependent of the East. Later, during the decadence of
the Abbasid Empire, its provincial governors became here-
ditary and virtually independent. They could wage war,
make peace or conclude other treaties, without reference
to the Caliph, and administer all their internal as well as
external affairs at their own will. Their nominal allegiance
1 See my article on Muslim colonisation, migration, repatriation and
allied tonics, in the time of the Prophet and his two successors, in the
Hindustani quattcly. , of Hyderabad. July 1940, under the
heading Hijrat.
* Ad-Dabusly, **-*>$£ , fol. 1516, (MS. Waliuddin, Istanbul,
No. 1402).
INDEPENDENCE
77
to the Caliph will be dealt with in a later chapter. We
shall conclude with one more instance of a curious kind.
It is recorded that the Caliph HlrGn ar-Rashld created a
buffer-state in North Africa, in a country where three
realms met — the Abbasid Empire, the Idrisite Kingdom and
the Umaiyad Dominions of Spain ; and handed it over to
the family of Aghlabites who exercised full independence
with this exception that they recited the name of the
Caliph of Baghdad in the Friday Sermons in cathedral
mosques. 1 *
We have seen that an independent state must be immune
from foreign intervention. It may briefly be dealt with.
Intervention.
Independence gives the right of immunity from external
interference But rights and obligations are correlated to
each other. Immunity requires abstention also from in-
tervening in others’ affairs. Yet there are times when
intervention is justified :
1. In self-defence.
2. In preventing an evil worse than meddling into
others’ affairs.
To intervene in self-defence may amount to retalia-
tion or repudiation of the existing treaty for which sanc-
tion is forthcoming both in the Qur’an 9 and the practice
of the Prophet. 3 * * It is sometimes difficult to distinguish
between a punitive act and an intervention. Coercion or
threat of coercion, naked or veiled, lies at the root of
intervention ; and an unwilling submission on the part of
the subject of intervention is necessary. Once some
Christian subjects had fled from Muslim territory and taken
1 Farid Rifa'Iy, , I, 128 ff.
* Cf. for instance, 8 : 56-58.
* I refer to the conquest of Mecca as a direct sequence of Meccans,
maltreatment of the allies of the Muslims. ( Ibn-Hisham , pp. 802 ff. ;
Tabariy. History, 1, 1621 ff. ; and other biographies of the Prophet.)
78
MUSLIM CONDUCT OF STATE
refuge in a Byzantine region. The Caliph ‘Umar's inter-
vention was the reason of their repatriation by the
Byzantine Emperor. 1
Intervention on the ground of humanity, or in the path
of God, as the Muslim authors call it, is not unknown ; it
is even upheld as the very first duty of a Muslim : —
Ye are the best community that hath been raised up
for mankind. Ye enjoin right conduct, and forbid
indecency ; and ye believe in God.*
And let there be a people from among you who invite
to do goodness, and enjoin right conduct and forbid in-
decency. Such are they who are successful. 3
And several other verses. Of the sayings of the Prophet,
I shall quote but one 1
Whoever from among you sees an indecency ( munkar ),
let him change it by his hand ; if he cannot, let him do
that by his tongue ; if he cannot, let him do that by his
heart (through disapproval, prayer to God, etc.) but this
last would testify to the extreme weakness of Faith*
The basis of intervention, however, has been provided in
the Quranic dictum, “ discord is worse than slaughter ” 3 and
in the legal maxim (the lesser of two
evils should be preferred.) 6
Muslim jurisconsults maintain that intervention by a
Muslim state even in another Muslim state is necessary if
the latter sets aside some significant command of the
Shariah ? Public despising of the Orthodox Caliphs by
some of the Shl'ites, was also one of the authorised grounds
to the Sunnis for intervention ; it was considered to amount
1 Tabarly, I, 3508. * Qur'an, 3; 110. * Idem, 3: 104.
4 Sahtk of Muslim, I, 50.
1 Qur’an, 2 : 191.
• )i\ ilxVo ch. I, maxims; Sarakhsiy.
iv, 46 ; iii, 332, etc.
1 See any law compendium, ch. “ Authorised grounds for waging war.**
INDEPENDENCE
79
to apostasy . 1
We must distinguish between intervention on the one
hand and protest, advice, good offices, mediation and
arbitration on the other. Mere protest,* falling short of any
active interference to rectify the act done, is but an expres-
sion of feeling. In advice , 3 friendly suggestion is tendered
in all good faith without any sanction behind it to carry it
out. By good offices and mediation , 4 we understand
the act of maintaining contact with both the conflicting
parties and providing them both with a means of negotiation
and pacific settlement. In arbitration , 3 both the conflicting
parties place their case in the hands of a referee whose
award they previously agree to execute. In none of them is
there coercion or forceful carrying out of one's will which
is so essential to intervention.
§ Apostates.
■ The attitude of the Prophet ffabarly, History 1, 1572) at the recep-
tion accorded to his letter and his envoy by the Emperor of Persia, may
not amount to more than a mere protest and expression of disgust at
the violation of international comity.
* In modern times, there are more cases of this kind than in classical
times.
4 For a case in *the time of the Prophet, see Tabarly, anno 1,
p. 1265 ; Ibn Hisharn , p. 419.
s lbn-Hisham % p. 669-70, 673 (Case of_ Quraizah );-Dinawarty,
p. 196-99;— Tabariy, History , I, 3336-38 (case of *Aliy and Mu‘Swiyah).
CHAPTER III
Property
LIKE private individuals, states, too, may and do own
property.
The first thing a state owns is territory. The relation
of state with territory is so close that a state without
definite territory is even inconceivable. Even the de jure
rulers in exile possess defined territories to which they lay
claim.
By territory is here meant not only the surface of the part
of the earth over which a state exercises its jurisdiction, but
what is below it and what is above it. comprising thus land,
water and air. Obviously, in ancient times, when science had
not developed so much, states laid claim over only so much
of the creation of God as they could directly dominate.
By the time Islam made its appearance, man had already
conquered water as well as the subterranean treasures of
nature such as minerals. Regarding air, there were neither
aeroplanes nor radio broadcasts. Nevertheless the Arab
jurists believed that everything above or below a territory
belonged to it. It was thus that they prohibited the con-
struction of private buildings over or below public bequests
such as mosques, schools, etc . 1 With water we shall have
to deal later on.
No doubt, the theocratic basis of Muslim polity denies a
state absolute ownership— as distinguished from relative
ownership or trusteeship for God— in territory ; neverthe-
less for all practical purposes, there is no difference
1 See any law compendium, ch. Waqf.
PROPERTY
81
between the powers of a Muslim state and those of a state
which does not believe in God, regarding its territory.
In view of the ultimate ownership of God, it not
only implies that the human ownership of a Muslim
state should be a mere trusteeship and administratorship
but also Divine origin of the rights of a sovereign. A sove-
reign authority is declared in the words of the Prophet as
the “shadow of God", and whoever despises it, despises, so
to say, God Himself. 1 * * 4 It is to be noted, however, that in
spite of this Divine appointment, the Muslim ruler is not a
despot : he is, first of all, as much subject to the laws of
the country, (the Shari' at itself having a Divine origin, and
not vaguely but in concrete form of Qur’an and Sunnah),
as any other commoner from among his subjects ; further,
the ruler is maintained in power by the collective might of
the community ; he may even be deposed* by the commu-
nity on the principle that the Hand of God is on the
community (£*1*4-1 ^* <&Ijo) s and that the community cannot
agree to a wrong (£J^U»J1 ^* ^L.1 or vox populi
vox dei.
1 Cf. Tayalisly, No. 887 ; Ibn Hanbal, V. 42, 48 and especially 165.
* Sarakhsiy, l»^****^l X, 93 :
£*l*y a jo j 1 ... 11 fUl Jo I
Kassniy : VII, 16 : Jj*J> Jirf J^illy**.. . £J*jJ*o* *
Ibn- KhaldOn, Proleg. ch. 26 : vJ**'
al-Hutai’ah (d. 30 H.) mourning on the murder of ‘Umar :
JjdliU JXjJl ^ 'UVI wol
Jfcll bXt
— cf. ‘Ally ‘Abd ar-Raziq, } fiL^l (Cairo, 1343 H.) — cf.
the curious opinion of Dir5r-ibn-*Amr on the preference of non-
Quraishites for the Caliphate, in Naubakhtiy’s : £ji p. 10.
* Tirmidhiy, ch. <3
4 Ibid.
82
MUSLIM CONDUCT OF STATE
Unlike other systems of jurisprudence where the indivi-
dual owns property in lands as a delegated authority or
trustee, all land of a territory being vested in the state,
Islamic jurists have opined that every individual owner has
the same Divine authority, and the supervising authority of
the state is only a symbol or a manifestation of the collec-
tive authority of the community. Abu-IJanlfah, for
instance, is reported to have said :
All parts of the Muslim territory are under the
authority of the Imam (Ruler) of the Muslims, and his
authority is the authority of the community of the
Muslims . 1 *
We have seen that a state always owns territofy 1 — details
of which will be given presently — yet that is not all. A
state may and always does own things other than territory,
such as buildings, means of transport, money, stores, books,
etc. International law applies to them in so far as their
acquisition by one from another, through pacific or hostile
methods, and their disposal are concerned.
But territory, that essence and cream of a state’s pro-
perty, requires further elucidation.
Boundaries.
Boundaries have always been a very difficult question to
settle in international intercourse. They are defined
through prescription as well as express treaties between
the neighbouring states. If there is a river or lake on the
frontier, the boundaries of the states will extend to meet
each other in, the middle of the water unless otherwise
settled by prescription or express treaty . 3
1 as-SarakhsIv. Mabsut, X, 93.
* The derelict and unowned land also belongs to the state ( Atnwal of
AbU-'Ubaid, § 674. 690.)
* Muslim jurists recognise this regarding private property (cf. any
PROPERTY
83
It is a general and admitted principle of Muslim law that
water will be an appurtenant to adjoining land and not
vice versa. 1 That is, a state which possesses a tract of land
bounded by water, will prima facie be presumed to possess
also the adjoining water— a lake for example ; and not that
the state which possesses water, is entitled to the proprie-
tary rights of the adjoining land.
Open Sea.
Obviously open sea cannot be treated as ordinary water-
course or lake. Early writers scarcely mention it in this
connection: Post-classical jurists have a difference of
opinion whether it should be considered as no-man’s property
or non-Muslim territory. In either case, they argue on
the basis of control that could be exercised. Ibn-‘ Abidin,
while describing the capture of Muslim property by the
enemy and rendering it safe through taking it to their
territory, analyses the opinions of different jurists on the
subject : —
“...if they (i.e„ enemy) take it to the safety of their
territory. The enemy territory includes the Salt Sea (Open
Sea) and the like ; for instance, a desert beyond which
there is no Islamic territory. This opinion has been attri-
buted to al-IJamawiy (d. 1098). Abus-Suud, writing notes
on the commentary of al-HSmiliy’s in verse, says that the
surface of sea will be considered as non-Muslim territory.
Ash-Sharanbililiy (born 1069 H., author of i)
records in his chapter on tithes that
Siraj ad-Dln ‘Umar ibn ‘Ally al-Kin5niy, known as the
Reader of Hiddyah , was asked whether the Salt Sea
would be considered as part of Muslim territory or
compendium under ch. cjU^), The same must apply
to international cases.
1 Cf. Kasaniy, VI, 189*90 ; and others in loco.
84
MUSLIM CONDUCT OF STATE
non-Muslim territory ? He replied : It belongs to
.neither category since none has control over it. Al-
Haskafly in his (compiled in 1080 as a commen-
tary of by Ibt^hlm al-Halably) opines that
jthe Salt Sea should be included in non-Muslim territory.’ 1 ’ 1
The same author mentions in another place 2 :
“ The author of says that all that appertains
neither to Muslim territory nor to non-Muslim territory
should be included in non-Muslim territory ; for instance,
the Salt Sea over which no one has control Apart
from this, the Salt Sea will be treated as non-Muslim
territory. So, if a non-Muslim subject of Muslim state
goes thereto without permission, he will become a subject
.of non-Muslim state and his allegiance will be cut off.
Again, if a subject of a non-Muslim state goes thereto
and returns to Islamic territory before reaching home,
the old permit will no longer be valid ; his belongings
will again be taxed."
It is clear from this discussion that the opinion of these
jurists was based on the difficulty of exercising power over
it with their small sailing boats. They admit implicitly that
Muslim jurisdiction extends to what they can control. In
later times the Turks, for instance, have exercised their
jurisdiction over the Black Sea, and no Muslim jurists have
denied the validity of it.
In connection with territorial waters, a saying of the
Prophet, in quite general and all-embracing terms, may be
referred to He is reported to have laid down that “every
land has its appurtenance forbidden [to other than the pro-
prietor]’’ JCI $ Ail* Ail)*. The rule
1 Ibn ‘Abidin, ^aJI _J5» \>j 111,266-67.
• Idem, II. 423-24.
• Abu-Ynsuf, p. 57 ; al-KSsSniy, gi'-A* VI, 195.
PROPERTY
85
has been developed regarding municipal law so as to apply to
wells, roads, waterways, canals, houses, etc., 1 * yet it does not
seem to have been developed and worked out so as to apply
to international law, more particularly to open sea. And
probably there was then no need even. According to
Muslim jurisprudence even the sea has been put into man’s
control : —
(а) It is . God Who hath subjected the sea unto you,
that the ships may sail therein at His command and that
ye may seek [advantage unto yourselves through
commerce, etc.) of His bounty and that ye may give
[Him] thanks. And He hath subjected unto you what-
ever exists in the heavens and in the earth ; and therein
are verily portends unto thinking folk. 3
(б) And He it is Who hath constrained the sea to be
of service that ye eat fresh meat from thence, and bring
forth from thence ornaments which ye wear. And thou
seest the ships ploughing it that ye may seek of His
bounty and ye may give [Him] thanks.*
And if the Muslim state can snatch control over part of
it from anybody else, it will become part of Muslim terri-
tory. However, it is to be noted that Muslim jurists
have always made a distinction between what they consider
of public utility and private utility. A thing of public
utility cannot be given in monopoly to private individuals :
All the Muslims join in the utilisation of Tigris and
Euphrates and any other big river like them or valley
from which they water the soil or use for drinking
purposes of man and beast. ..The maintenance of such
big rivers and repairing their banks is on the public
1 AbU-YOsuf, op. cit., p. 57.
* Qur’an, 45 : 12-13.
* Qur’«n. 16: 14.
86
MUSLIM CONDUCT OF STATE
treasury. The big rivers are not like particular rivulets
belonging to private persons where others cannot
enter... Tigris and Euphrates are not like that, and any-
body who likes to water his soil from them can do that
at will ; boats pass in them ; right of pre-emption does
not arise on account of mere joining in the utilisation of
their water . 1 *
The Prophet himself prohibited more than once the
giving in jigir (fief) of things in which there is common
interest . 1
International waterways and canals were contemplated in
classical times, one even to join the Red Sea with the
Mediterranean, though never undertaken for fear of strate-
gic complications. I do not hesitate to maintain that, had
they been projected and achieved, they would not have
been different from ordinary canals and rivers, with full
exercise of jurisdiction and proprietary rights and complete
control over traffic. The famous canal from Cairo to the
Red Sea constructed in the time of Caliph ‘Umar, suggests
to us the treatment that would have been meted out to it 3 if it
had been extended down to Farama 4 * 6 near Port Sa‘id. The
canals and rivers and other waterways in Muslim territories
were open to all peaceful traffic, and if foreigners brought
anything from their country through waterways, they were
taxed with the usual dues . 3
1 Abu Yusuf, Kkarai. pp. 55-56.
3 For one case cf. Ibn-Sa‘d, 1/2, p. 58 and Ibn-‘Abd-al-Barr,
No. 3431 ; for another, Abu-*Ubaid, § 683* 693.
3 Tabariy, History , I, 2577 ; SuyUtiy, Husn al-muhafarah , ch. Khalij
amir al-mu'minin.
4 Cf., Mas‘udly, f (ed. Egypt), I, 270 ; ^Abu’l-Fida*
p. 106.
6 Abu- Yusuf, Kharai . p. 78.
PROPERTY
87
Modes of acquiring Territory.
Modes of acquiring new territory by a Muslim state may
be divided as follows : —
Newly acquired Territory
possessed up to this possessed up to this time
time by some other state by no other state
f
taken by Compulsion
1
taken by Agreement
Conquest Occupation Gift Sale Exchange Inherit-
(3a) (3 b) (4 a) (4b) (4c) ance or
Succession
(4 d)
Uninhabited and unknown Newly coming into
or otherwise forsaken existence
( 1 )
by act of
Nature
by act of
Man
(2a) (2b)
(1) Territory not yet occupied by any state owing either
to new discovery or for want of being cared for on account
of its remoteness or some other reason, may be acquired by
occupation. There is no case of this kind in early Muslim
history except one when some Arabs reached a new and
unknown island by stress of weather and afterwards related
wonderful stories to the Prophet. 1 Annexation could
obviously not be expected. In later travel literature, there
are frequent references to discovery of new islands by those
hardy Muslim sailors who dared undertake voyages from
Persia and Egypt to China in tiny boats to the envy of
1 Sahik of Muslim, 52 : 119-22.
88
MUSLIM CONDUCT OF STATE
modern navigators, but no instance of occupation is known
to me. Even the discovery of America by the Arabs 1 * * * * * has
not left anything of interest from the point of view of inter-
national law except that colonisation had just begun. The
history of Muslim occupation of the South Seas and the
thousands of islands in Oceania is yet to be written to
provide us with necessary data.
(2) Lands coming newly into existence may be of two
kinds : those which came into being by act of nature, and
those by act and art of man. In the former, we may include
islands raised up by convulsion of earth or alluvial deposits
of a river or even by the change of a river’s course. Arti-
ficial reclamations of water-covered areas are old enough
to be mentioned by Abu- Yusuf.*
If natural accretion happens within the territorial limits of
one state — the nearer half of a boundary river included
— and has caused no damage to any other state, it requires
no formal occupation in an international sense. If an island
comes up in a place where the imaginary boundary line
crosses through it, it must be proportionately divided and
distributed between the neighbouring states concerned or
otherwise the matters should be settled through treaty
stipulations.
But if the natural accretion has happened at the expense
of another state — as, for instance, through change of river’s
course — Muslim municipal law says 9 that the accretion
must go to the one in whose possession it has happened,
1 Sulaiman Nadwl, A& jA jjl (cf. the Hindustani monthly
Ma'arif, A'zamgarh, March and April *1939 ; Islamic Culture, July 1939,
pp. 382-83).
* Khardj, pp. 52-53 (ch. Islands in Tigris and Euphrates); YahyB-ibn-
Adam al-Qurashiy, Khardi. p. 15.
s £jd.x*Jl Vol. I, in loco.
PROPERTY
89
yet he must pay compensation co the sufferer in proportion
to his gain. This is based on the principle expressed in the
maxims that "gain is with sufferance” feyUlg* fAAJl) and
" injury must be removed” (Jl ji The Muslim
jurists will apply the same rule to international disputes.
Yet if the changing of a river's course is so great that it
has become a territorial river instead of a boundary river,
the line of boundary must lie in its old bed, for :
Thy Lord bringeth to pass what He willeth and chooseth.
They (i.e., human beings) have never any choice. Glori-
fied be God and exalted above all that they associate (with
Him). 1 2 *
And it becometh not a believing man or a believing
woman, when God and His Messenger have decided an
affair (for them), that they should after that claim any-
thing in their affair ; and whoso is rebellious to God and
His Messenger, he verily goeth astray in error manifest.’
There are many cases in Muslim history of a river’s
changing its course, 4 ‘Amudarya (Oxus), for example, but
whether these events ever produced interstatal complications
I am unaware.
Artificial reclamation has nearly the same bearing. If it
can be achieved without others’ suffering in any way, no
right of interference accrues to anybody. Otherwise, it
will require previous settlement through express stipulation.
(3) Forcefully acquiring a territory possessed by some
other state may be either through war and conquest or even
mere occupation without encountering any resistance on
1 £xl.XaJt ch. I, Maxims.
• Qur'an, 28 : 68.
• Qur'Sn, 33 : 36.
4 Cf- Encyclopaedia of Islam , s. v. Amu-Darya ; Barthold, Turkistan , in
loco , (vide index thereto).
90
MUSLIM CONDUCT OF STATE
the part of the occupied. Mere conquest does not amount
to annexation : it requires intention to annex. For it is
possible that conquest and occupation were carried out on
behalf of some allied and friendly state, or merely tempor-
arily to compel the opponent state to mend some wrong.
Secondly, it requires continuous and uninterrupted gover-
nance and the exercise of sovereign rights combined with
firm possession.
(4) Territorial acquisition through mutual consent may
either be through gift, exchange, sale or inheritance. Gifts,
especially as dowries, have left many instances, at least in
the history of Muslim India. 1 Exchange of territories has
also occurred many a time 2 mostly for strengthening boun-
daries. An instance of sale is recorded during the reign of
Caliph 'Umar II of the Umaiyad dynasty, who purchased
Malatlyah from the Byzantines, giving in exchange a hun-
dred-thousand prisoners of war. 3 A case of inheritance was
provided for in the treaty of cession concluded between al-
Hasan and Mu'Swiyah, by which the former handed over to
the latter all his possessions on the condition that he should
be declared heir-apparent to the whole dominions of the
latter. 4
Various Kinds of Territories under Power of a State.
1 In the year 1564 the fort of SholapPr was handed over by
N ijamshah to ‘Adilshah.
. 1 Abul-Fida, History, (ed. Europe), III. 264. 464, 608 ; IV, 36, 56 .
Tippu Sultan had offered the Turks to exchange Managalore for Basrah.
(C/. my paper in the first Deccan History Conference).
* Abn-‘ Abdallah Muharamad-ibn-SalSmah-ibn-Ja'far,
j ^Ull^*** (MS. Topkapusarai, Istanbul, No.
2791, copied in 748 from a MS. written in 422 H.), fol. 77a : —
i_aJI Lr O'* ^ ert *+* M
" Ulu j 1
4 Th s clause of the treaty is recorded by few, Tabariy not included.
PROPERTY
91
A state does not always exercise similar powers over all
parts of its territory. A few instances will illustrate the
point :
(a) Regular Parts of Dominions and Condominiums.
Every such part of the territory of a state is under its
direct control, no matter whether possessed since antiquity
or newly added, whether populated or waste, civilised or
nomadic and even barbarous. A state may consist at the
same time of all or several of these kinds of lands.
Abul-Fida records a case of condominium which lasted
for a long time (c\xjj«»
(b) Tributary Independent States.
For want of a better term, we mean by this the non-
Muslim states from which a Muslim state received tribute,
by the exercise of compulsion. This does not involve pro-
tection by the Muslim state of the tributary state against
aggression of third powers, but it secures itself from attack
on the part of the Muslim state. Apart from this obliga-
tion of tribute, the non-Muslim state remains completely
independent, the tribute symbolising only a sort of in-
feriority and weakness. Thus, for instance, Theodomir
agreed to pay yearly tribute to the Arab conquerors of the
first century of Hijrah while at the same time retained his
independence. 8 So also under the Abbasid al-MansGr and
all his successors down to al-Mu'tasim, the Emperors of
Constantinople paid tribute more or less regularly to
Baghdad. Caliph al-Mahdly received tribute from the
Empress Irene, and Harun ar-Rashid not only received
tribute but also capitation tax ( jtzyah ) from the Emperor
1 Abul-FidS, History, under the year 588 A.H. Cf. also supep, $
“ Independence.”
* Gibbon, Decline and Fall, V, 566 ; S. P. Scot, Moorish Empire in
Europe, Urdu trana. 1, 263,
92
MUSLIM CONDUCT OF STATE
Nicephorus and his family. 1 Yet in all such cases the inter-
nal and external autonomy of the tributary state did not
suffer.
There is even a case of dual subjection to tribute. Caliph
Mu'&wiyah subjugated Cyprus and concluded peace on the
condition that Cyprus should yearly pay a certain tribute
notwithstanding the fact that it also paid tribute to the
Byzantine emperor. It was further stipulated that the
people of Cyprus should remain sincere and well-wishers of
the Muslims and should keep them informed of the move-
ments of the Byzantine.*
(c) Nominally Dependent.
By this we mean the Muslim independent states which
came into being when the authority of the Abbasid Caliphs
could not exert itself. We may include in this category
even the Soanish states until ‘Abdar-Rahman an-Nasir
• •
assumed the title of the “ Commander of the Faithful,” 5
reserved for only one person at a time for the whole of the
Muslim world. More pre-eminently this is true of the
states in the East. They were originally provinces of the
empire of the Caliph, and had gradually become indepen-
dent, so much so that they gave birth to dynasties of rulers.
In spite of full independence that they enjoyed, they
publicly acknowledged their allegiance to the Caliph of
Baghdad in the weekly Friday sermons in the cathedral
mosques and also at the two yearly 4 Id festivals. 4 Often the
* Gibbon, Decline and Fall, VI, 39-40 ; Farid Rifa‘iy i 1, 129 ;
§hibli, or .UI , ch. Contemporary States.
* AbO-'Ubaid. v_jIa£ , § 467 ; BalSdhuriy, § Cyprus ,
cf. Ibn al-Athlr, III. 74-75, 107.
* “ In the beginning they were styled as and not .IjlIsL " cf.
Mas‘Qdiy. Muruj, (ed. Egypt). I, 70.
4 Ibn Hawqal, dJUil * viUU.il, PP- 227-28; Ibn-Jubair, - PP.
50-51.
PROPERTY
93
name of the Caliph was struck on the coins of these states. 1
The succession was for long considered incomplete without
the charter or letter-patent of the Caliph. 2 The titles of
honour were jealously and eagerly sought after. 3 This is
true not only of the provinces of the Caliphate which be-
came independent but also of the Muslim states founded
and conquered by private individuals at their own initia-
tive, and nevertheless they believed themselves bound to pay
homage to the Caliph, such as the states in India. To this
list we may add the names of states whose sovereigns em-
braced Islam and paid homage to the Caliph ; for instance,
the King of Bulgars in the year 310 H. 4 In all these cases
the dependence, if at all we may term it so,- was more per-
sonal and institutional than political and actual. It cannot,
however, be denied that the Caliph did at times exercise a
moral influence over the policies of these independent
states, as for instance, in the year 757 H. the influence of
the Caliph was sufficient to prevent Feroz Shah, in such a
far off country as India, from attacking Mahmud Shah
Bahmanl who had obtained intercession of the Caliph in his
favour somehow or other. 5
History has recorded the curious and even paradoxical
1 Numismatic Chronicle , 1885, pp. 215-27 coins of the dynasties of
Ghulaman. Tughlaq, Khilji, Ludhi, JonpDr. Malwah. Bengal
II, of 924). Cf. also Catalogue of Coins in Indian Museum, Calcutta.
Vol. II. published 1907, pp. 20 ff. : Catalogue of Indian Coins in British
Museum, part “ Muslim Countries,” 1885, etc.
* Muhammad Habib, Sultdn MahrnOd of Ghazntn, pp. 3-4.
• •
* Even by Sultan Mahmud of Ghaznln. Siyasatuameh, by Nizamulmulk,
p. 132 : etc.
* Yaqut, s. v. Bulghar. Even Ibn-Fadlallah gives in
764 H. the name of the ruler of Bulghar in the list of Muslim kings (cf. his
uaj »*XJ\ ), in loco.
» ‘Abdal-Jabbar, i-JyxX* P- 239. (It is a history of South
India).
94
MUSLIM CONDUCT OF STATE
cases when some of these provincial, independent governors,
sometimes even Shl'ahs, captured Baghdad, the very seat
of the Caliphate, ruled over it as part of their territory and
yet paid homage to the Caliph . 1 * The AiyQbid §alahuddin
the Great was rightly and meritoriously given the proud
title of “ The Reviver of the Kingdom of the Commander of
the Faithful ” ( aJy ^asv^).*
(d) Protected States.
By this we mean those part-sovereign or non-sovereign
states which obey the dictates of their protector in many
matters of policy, being in return entitled to protection
from the suzerain and protecting state. The protecting
state exercises a certain amount of control, yet does not
govern directly the protected country where the local
prince continues to rule. The Prophet had addressed mis-
sionary letters to many a foreign prince in which this
characteristic phrase occurred : “ If you submit, I shall
leave intact the power you exercise .” 3 Of those who were
addressed in this way, the rulers of Bahrain and ‘Uman ac-
cepted the Call, and the Prophet sent to their Courts
Residents who exercised certain functions, had exclusive
jurisdiction over the Muslims in those countries* and at the
same time the local rulers retained their powers in the
1 I refer to the Shi‘ah Buhids and Sunni Saljucids.
* Ibn-Jubair, pp. 50-51 ; also an epigraphic monument on the
southern side of the Dome of the Rock (itjSUaJI 3LjS) > n Jerusalem, in-
scribed by SalBhuddin the Great, visited by me in 1932.
* With slight difference in the way of expression the same phrase was
addressed to Mundhir-ibn-Sawg of Bahrain, Hawdhah-ibn-'Aliy of
YamBmah and Jaifar and ‘Abd, both of ‘Uman. The phrase “ Submit and
you will be safe," was also addressed to the Emperors Negus, Heracleus
tind Chosroes. For texts see my Arabic or French Corpus or Ibn-TUlDn,
' Ibn-Sa‘d, Qalqashandiy, Ibn-Kathlr, etc. The expression “ submit ”
( ■J^' ) may also mean embrace Islam •
PROPERTY
95
residuary matters. In later history of Islam, however, there
are innumerable instances of protectorates with varying
grades of powers exercised by the Suzerain power, in India
as well as elsewhere.
(e) Sphere of Influence.
By this we understand a country which is marked by a
state for future, domination but, which it does not consider
ripe enough for immediate annexation. In such cases,
generally, there are either express or tacit agreements with
other possible rivals who first disclaim any interest of theirs
in the country concerned, and gradually all connections are
severed between the sphere of influence and the rest of
the world except the dominant state which at last occupies
it at a proper time.
There is an instance of this kind in the history of India,
probably not the only one of its kind : —
jo>b ^ • 2***3 aJLwi j>
<Lm) fUiki iA^ >yS j y\ A iU ^
I j iftiSib <Ih> J)l» 3 ^ ji * i»«
*****
[In the year 939 H. they ( i.e ., Nizam Shah and ‘Adil
Shah) met together on the frontier, and after much
negotiation so decided that Nizam Shah should subdue
and annex the country of Berar, and Adil Shah the
dominion of Telenganah, thus dividing Southern India
equally between each other.] 1
The chief point agreed upon, in this treaty, was that one
would not interfere if the other conquered the territory
allotted to him and would recognise as the sphere of his
influence and his interest.
gu^lS (printed at Poona, 1274 H.) II, 212.
96
MUSLIM CONDUCT OF STA1E
Neutralisation and No-Man's Land.
That there exist tracts of land, especially on the frontiers,
where neither of the neighbouring states exercises authority
has been known to classical Muslim jurists. Thus, Radiy-
ud-Dln as-Sarakhsiy writes that a Muslim subject, tempor-
arily residing in a belligerent state, may bring under his
protection an enemy person to Muslim territory ; and such
a person will be considered as bona fide resident alien,
because, although the protection given by a Muslim, residing
in belligerent country, is void, yet,
3 LL 1»^>1 ...
bhlal aai fluJLI ^)Lj LJjil Ja| oJ ii aaI*
g -®y» jJU ii^sLU
^»l * * *l l <J^v»
[As soon as they have arrived at a place between the
two territories, where no one has authority, they are
relieved of the jurisdiction of the belligerent state, and
the protection given her by the Muslim becomes valid
and she cannot be taken prisoner under Muslim authority
unless she had reached a place where the Muslims find
themselves safe (i.e., Muslim territory ).] 1
Vol. I, fol. 6036 (MS. Waliuddin, No. 1356, Istanbul)
CHAPTER IV
Jurisdiction
IN time of peace many things as well as versons come
under the jurisdiction of a state :
1. Things :
(a) Property of the Government as well as of its
subjects situated within the territory of a state,
(&) Property within territorial waters,
(c) Ships, etc., belonging to the state or its subjects on
open sea or in the air,
(d) Embassies in foreign countries.
2. Persons :
(a) Muslim subjects residing within the state,
(b) Non-Muslim subjects within the state,
(c) Subjects residing temporarily in a foreign country,
(d) Citizens of one Muslim State in another,
(e) Muslim citizens of a non-Muslim State,
(f) Resident aliens in Muslim territory.
The jurisdiction is not alike regarding each and every
one of them.
THINGS
There is not much to say regarding Things. Cases
arising regarding these things will be adjudicated by judges
of the Muslim State according to Muslim law. We
have dealt with the abnormal no-man’s land in the pre-
vious chapter. More on the non-Muslim subjects of the
98 MUSLIM CONDUCT OF STATE
Muslim State will be discussed in the following section,
under Persons. Contracts, mortgages, etc., will also be dealt
with there.
PERSONS
(a) Muslim subjects at home.
The first category of persons does not belong to our
subject except in so far as the naturalisation of foreigners
is concerned. According to the Qur’anic principle that
“The believers are naught else than brothers,” 1 it im-
plies that as soon as a Muslim migrates from his non-
Muslim home and comes to Islamic territory, with the in-
tention of residing - there, he at once becomes a full-
fledged Muslim citizen of the Muslim State ; he has the
same rights as the other Muslim citizens and the same
obligations as they. We may refer in this connection to the
oft-quoted instructions of the Prophet in which he com-
manded : “Ask them to embrace Islam. If they comply,
molest them no more but ask them to migrate to the
Territory of Migration. If they do that, they will have
the same rights as the migrants (i.e., Muslims) and same
obligations as they. If they refuse to migrate, inform them
that they will be considered like the wandering or non-
resident Muslims cj! jAS. They will have, however,
to observe the Divine laws even as all the believers ; they
will not share the booty and spoils captured by the Muslim
armies except when they come and join in fight along with
them."*
I may refer to a rule which has some bearing on the
question. If a Muslim travels abroad, he gets a concession
regarding the length of his five daily services, yet if he
1 Qur’an. 49 : 10.
* Safa of Muslim, V. 139-40.
JURISDICTION
99
decides to stay in a place for fifteen days, he becomes a
settled resident and the concession is withdrawn. This
rule, called the rule of qasr as-salat, is based on Quranic
verse 1 with many amplifications on the authority of the
Prophet. I mean to emphasise that a foreign Muslim
required originally only the intention of at least a fort-
night’s stay to become a settled and regular citizen. In
quite recent times, however, geographic nationalities are
making certain discriminations, and even the orthodox
Sa'udian Arabia has promulgated laws as to how a foreign
Muslim may acquire citizenship in her dominions. Pre-
valent international conditions have necessitated that.
( 6 ) Non-Muslim subjects at home.
Muslim law has maintained a considerable distinction
between Muslim and non-Mus]im subjects. In many re-
spects the latter are better off. They are exempt from
the surplus property tax ( zakat )* which all the Muslims,
male or female, young or old, pay every year at the rate
of 2j per cent, on their cash, commercial goods, herds of
cattle, etc., above the minimum of about Hyderabadi Rs. 40
(£2-10). They are also exempt from conscription. 3 where-
as all Muslims are subject to compulsory military service.
They enjoy a sort of autonomy : their cases are adjudicated
by their co-religionists in accordance with their personal
law. 4 Their life and property is protected by the Muslim
1 Qur’an, 4 : 101. Cf. also Tabarly. Tafsir, regarding the same verse.
* Ash-ghaibanly, jloVt , ch. gxJLoJI , (MS. Aya Sofia No.
1076, Istanbul); ‘Abdal-‘Aziz-ibn-Muhammad ar-Rahabiy, cjU*
» » v .. ' j'j) \ gj fol. 247b (MS. Laleli No. 1609, Istanbul); Aba- Yusuf,
Khar a j , p. 70.
* Cf. Tabarly, History , I, 2497, 2665.
4 Qur'an, 5 : 44-48. For practice in the time of Caliph 'Umar, see Die -
tionnaire d'Histoire et Gdographie Ecctisiastique , s. v. Antioche, Col. 594. For
rights and duties of such communal chiefs of a later time see Ibn-Fadlallah
al-‘U marly Uo^»£Jl , PP» 142-46.
100
MUSLIM CONDUCT OF STATE
State even as those of the Muslim subjects. 1 In return
for all this, they are required to pay annually from 12
to 48 drachmas (about two to eight rupees) per head,
with several exceptions as under :
“ The capitation tax is exacted only from males. Women
and minors are exempted. The rich have to pay 48
drachmas, the man with average means 24, and the one
practising handicraft for livelihood, like the peasant, 12
only, which will be collected from them once a year.
Instead of cash, they may pay the value ... Further the
capitation tax is not exacted from the indigent
who receive charities, nor from the blind who have
no profession and do not work, nor from the chronic-
ally sick receiving charities, nor from the crippled —
except those chronically sick and crippled and blind
who are rich — nor fronf the monks in convents
nor from the very old who can neither work nor have
wealth, nor from the lunatic . . . And, O Commander of
the Faithful ! May God help thee ! It is necessary that
thou shouldst treat the people who were protected by thy
Prophet and thy cousin Muhammad (i.e., the non-
Muslim subjects) with leniency, and inquirest about
their conditions so that they are neither oppressed nor
given trouble nor taxed beyond their capacity, nor any-
thing of theirs is taken from them except with a duty
encumbering them. For it is reported from the Mes-
senger of God who said : ‘Whoever oppresseth a non-
Muslim subject or taxeth him beyond his capacity, then
I shall be a party to him.’ And the last words which
the Caliph ‘Umar-ibn-al-Kha^ab uttered at his death-
bed, included the following : I exhort my successor
regarding the treatment to be meted out to the
1 Commands of the Prophet cited by Abu-YUsuf, Kharai . p. 71.
JURISDICTION
101
people protected by the Messenger of God (i.e., non-
Muslim subjects). They should receive the fullest exe-
cution of their covenant, and their life and property
should be defended even by going to war. and they
should not be taxed beyond their capacity
Once ‘Umar passed along a street where somebody was
asking for charity. He was old and blind. ‘Umar tapped
his shoulder from behind and said: From which
community art thou ? He replied : A Jew. He said :
And what hath constrained thee to what I see thee in ?
He replied : I have to pay the capitation tax : I am
poor ; and I am old. At this ‘Umar took him by the
hand and led him to his own house and gave him some-
thing from his private coffers. Then he sent word to
the cashier of the Baitul-Mdl (State Treasury): Look at
him and his like. By God ! we should never be doing
justice if we eat out his youth and leave him deserted in
the old age. ‘The government taxes are meant for
the poor and the indigent’ (Qur’an, 9 : 60) — the poor are
the Muslims, and this one is an indigent from among
the Scriptuaries. And ‘Umar remitted the capitation
tax from him and his like.” 1 * *
Again, slaves are also exempted from this tax. 8 If the non-
Muslim subjects render military service, at their will,
they are exempted from it during the years of active
service. 5 There are instances when this tax was remitted
during a whole lifetime for meritorious public service, as, for
instance, the Caliph ‘ Umar did when a non-Muslim subject
helped in selecting the site for digging a canal from Cairo
1 Abu- Yusuf, Khardi . pp. 69-72,
* Ibn-Rushd, j^asbJU Sol jo , I. 371.
* Tabariy, History , I, 2497, 2665.
102
MUSLIM CONDUCT OF STATE
to Red Sea. 1
According to a will of the Prophet, non- Muslims are not
to be permitted to settle in Arabia proper,* otherwise there
are no restrictions on their movements and domiciles. If non-
Muslim foreigners want to settle in Muslim territory
permanently or for more than a year, they have to pay this
“protection tax
The law of the capitation tax was originally laid down
by the Qur’an* regarding the Scriptuaries J*f or
i-* JJ1 This term is interpreted as applying to the Jews
and the Christians. The Qur’an is silent in this connexion
regarding other non-Islamic creeds. The practice of the
Prophet* and that of the Orthodox Caliphs* has, however,
decided that all non-Muslims may be tolerated as subjects. So
‘Uithman accepted capitation tax from Berbers and ‘Abdul-
malik from Lingayats and Brahmins of India. Abu-Hanifah
opines 5 J— *1 (all non-Muslims
will be considered as one category). Ash-Shaibaniy 6 also
remarked in similar terms XL. y&Jl— although these
remarks were made on occasions other than the discussion
of capitation tax. As-Sarakhsiy, after a prolonged and
scholarly discussion, concludes :
" is dear from this that the mention of the Scriptuaries
in the Qur’an is not to restrict the rule but only to show
that capitation tax may be accepted from the Scriptuaries.” 7
1 As-Suyutiy, sjtUJlj ^ j ch. gOi.
* Cf. supra , part I, ch. vi, § 9. * Qur'an, 9:29.
4 As-Sarakhsiy, xll , X. 119 ; AbU-Yusuf, Khardi. p. 74ff ; Ibn-
Majah, 17 : 41 ; Tirmidhiy 19 : 31 ; 3hafi‘iy,>tf , IV, 96. (Order regarding
the MajGs, i.e., Parsis, and Berbers).
* Cited by aslj-Shaibamy, , II, 141-42, (MSS Nos. 741-46 in
Wafa-‘Atif, Istanbul).
* Ibid.
X, 119.
JURISDICTION
103
More explicit is AbQ-Yflsuf :
“ The capitation tax is accepted from all non-Muslims
whether the Magians, the worshippers of idols or fire or
stones, the Sabeans, the Samaritans, except the apostates
from Islam and the idolaters of Arab origin.” 1 *
Naturalisation through Application.— li some foreigners
come to Islamic territory and apply for naturalisation, the
authorities may grant the request. In the time of Badr-ud-
Din Ibn-Juma'ah, when non-Muslims were granted natural-
isation, there was a special register in which entries were
made as to their names, distinguishing features; age, and
religion ; monitors were appointed from among them
to control their affairs and take notice of deaths, travels,
returns from abroad, reaching the age of majority, and also
to attend them at the time of the annual capitation tax. a
There does not seem to be any probation period suggest-
ed by jurists, yet obviously it lay with the government to
decide whether to grant the request for naturalisation or to
reject it just in the same way as it lay with the government
to grant temporary permits of sojourn.
Naturalisation through Marriage. — According to Islam, a
wife acquires the citizenship of the country of her husband. 3 4
Thus, if a non-Muslim alien girl marries a Muslim or even a
non-Muslim subject of the Islamic state, she becomes a
subject of the Muslim state. The same is the case if an
alien couple come to Islamic territory and the husband
acquires citizenship of the Muslim state, his wife also be-
comes a subject of the same state.* Obviously, if a non-
l ^il,p.73.
* Badr-ud-Din Ibn JumS'ah, JaI jo j, ,
foL 55a, ch. 17 (MS. Lalell, Istanbul. The work has since been edited in
the German Magazine, Islamica, Vol. VI).
• As-Sarakhsly, -ii.IV, 115ff.; al-KSsSnly, gMLoJl jiljj
VII.110. C
4 As-Sarakhsly. ibid.
104
MUSLIM CONDUCT OF STATE
Muslim alien marries a girl who is a subject of the Muslim
state, he does not automatically become a Muslim subject * 1 * *
His wife, however, would lose Muslim citizenship.
(c) Muslims in Foreign Territories.
Muslim law is intensely personal, and embraces all the
acts of life, no matter where. We have seen in Section (a)
of this chapter that the Prophet ordered the non-
resident Muslims to observe Muslim law wherever they,
might be. Hence the dictum of Abu-Yusuf* j*
U (a Muslim is to regulate his conduct
according to laws of Islam wherever he may be). It goes
without saying that this depends upon the liberty enjoyed
in foreign countries.’ We shall return to this question
presently. Yet it is to be said that although Muslim jurists
insist so much on the personal character of their law, they
make a sharp distinction between jurisdiction of a Muslim
court and that of a foreign court over a Muslim, on the one
hand, and moral obligations on the other ; and they do not
hold him responsible in a Muslim court for acts done in a
foreign territory. And on the same basis, they acquit a
foreign non-Muslim from all his acts committed in foreign
territory even against a Muslim subject, such as murder or
theft . 4 Dealing with the question, as-Sarakhsiv says :
If a Muslim enters the territory of non-Muslims by
their permission, and lends or borrows from them
money, or usurps their property or his property is
1 As-Sarakhsiy, J\ _ ..£> IV, 115 ff.
/ "• J ••
a Cited by as-Sarakhsiy, X, 95.
* According to the Qur’an ( cf . 12 : 75), Egypt, of the time of Joseph the
Patriarch, administered justice to foreigners, even in criminal cases,
according to their own personal laws (and hence the enslaving of Benjamin
on the authority of y ^JLUaJl villi SS O - )*
4 Mabsut of as-Sarakhsiy, X, 95.
JURISDICTION
105
usurped there, his case will not be heard (in the court
of the Muslim territory), because they did that in a
place outside Muslim jurisdiction. As for the Muslim
who usurped their property after guaranteeing them not
to do that, we hold this because he violated his pledge,
not the pledge of the Muslim ruler. Nevertheless,
jurisconsults will advise him to return the property
though the Muslim court will not compel him to do that.
And as for the foreigners in their homes who
usurped the property of the Muslim, we hold this because
they violated their pledge in a place where they were
not under the Muslim jurisdiction. So, if they kill him,
they will not be held responsible. If they destroy his
property or usurp it, the same holds good in a pre-emi-
nent degree. All this because the Muslim took the
risk and exposed himself to that when he quitted the
Muslim resisting power (i.e.. jurisdiction). The
same is true of monetary loans, if they come to Muslim
territory If a Muslim has gone by permission to non-
Muslim territory and destroyed there life or property,
he will not be held responsible in the Muslim court if
the other party comes to the Muslim territory. This is
because had they committed the same against him, they
would not have been held responsible in the Muslim court,
on the principle that they were there not under Muslim
jurisdiction. So he when he did that with them ; yet
it is improper for the Muslim under his religion
to violate his pledge with them, for the violation of a
pledge is forbidden ( f l ^), and the Prophet has said :
Whoever violates a pledge, a flag will be hoisted over
him on the Day of Judgment in order to point out that
he was a traitor. It is on account of this that, when he
violated with them his pledge and thus acquired some
property and brought it over to Muslim territory, it
106
MUSLIM CONDUCT OF STATE
would not be desirable for another Muslim to purchase
it if he knew the fact For the acquisition was through
evil means, and the purchase would be a persuasion to do
the like again, and that is not proper for a Muslim. This
is based on the tradition that al-Mughlrah-ibn-Shu‘bah
killed his companions and plundered them and brought
their belongings to Madinah, where he embraced Islam
and asked the Prophet to treat the plunder as war booty
and tax the fifth of it in favour of the public treasury.
The Prophet said : As for thy conversion to Islam, we
accept it ; but as for thy property, it was acquired by
treachery, and we do not require that. This prohibition
to purchase is not absolute but only the purchase is
improper .” 1
In spite of the insistence of Muslim jurists on Muslims
being bound by their own laws wherever they may find
themselves, it cannot be denied that Muslims in foreign
territories live there on sufferance and they are subject to
twofold restrictions. Firstly, Muslim law itself reduces their
legal capacity ; for instance, such a Muslim cannot give
quarter, during his stay abroad, to a non-Muslim so as to
bind the Muslim state, which he could do had he done that
in the Muslim territory.* Secondly, such Muslims have to
accommodate themselves to the laws of the country where
they are living. This requires some discussion.
During the time of the Prophet, the Muslims had taken
refuge for some years in Abyssinia. This was at a time
when a Muslim state was not in existence, though at the
time of their return from exile one such had been established
in Madinah. The historians inform us that the Muslims
enjoyed in Abyssinia perfect freedom of conscience. The
1 As-Sarakhsly. Mabsut , X, 95-97.
* Idem , p. 70.
JURISDICTION
107
Prophet had recommended that refuge saying that a just
ruler governed there. The refugees testify to the fact that
they worshipped there according to their rites, and celebrat-
ed daily services, and nobody maltreated them nor abused
them by unpleasant words. The Negus refused the demand
of the Meccan delegates for their extradition, and after
hearing both sides assured the Muslims that they were safe
in his territoty. 1
On the other hand, during the same time of the Prophet
the Byzantine governor of Ma'an embraced Islam where-
upon the Emperor ordered him to abjure his religion, and
on his refusal beheaded him. 2 Muslim historians mention
another case of a high church-dignitary who was lynched
by the Byzantine mob on his declaration of embracing
Islam. 9
Cases of good or bad treatment of Muslim minorities in
later epochs are innumerable, some of which we shall
presently mention. From all these we come to the conclu-
sion that it depended more on the whims of the rulers, in
those days, than on any fixed rules based on reciprocity and
consistency.
The question of Muslims in foreign countries had given
rise to capitulations which require some description. But
for want of precise data at present, we shall quote some
passages of interest rather than deduce rules from them :
(1) In the year 31 H., a pact was concluded between
the Muslims and the king of Nubia in which it was stipul-
ated that no objection would be raised if Muslims visited his
country or celebrated their services in the Mosque in
1 Ibn-Sa‘d. 1/1, p. 136: Ibn Hisham, p. 217ff„ 716ff.; Tabarly, History,
1. 1603 ; Ibn Hanbal, IV, 198; Rivista degli Studi Orientals Vol. X (1923),
pp. 90-98. '
* Ibn Sa‘d, Vol. 1/2. p. 31— Ibn Hisham, p. 958. For texts see my
Corpus, oi
* Tabarly, History, 1 1567.
108
MUSLIM CONDUCT OF STATE
Dongola, his capital. Some provisions for extraditing
criminals was also made in the treaty. 1 *
(2) In the time of al-Hajjaj-ibn-Yusuf, when many
Muslims fled from ‘Iraq and wanted to take refuge in
Malabar (India), the local chiefs required of them to wear
local dress and observe local customs. Here is what we
know about it :*
5*^* £ fy* 3 j**
<3 5 i yy\
t£ <A-*b y J^» ylij Sy ^*1 - ,J — < Ojm
\S*:) J 3 yi* Ur’i V Ob lJ *\ «/v«U y\j*\
f M-»| £\jji . ^UXai.1 ^ ^ <> jy\ ,_£•*>/
>j~i . 3 S -y® ‘(J/by’V ^b i
^ ^ flval J*l yy\ LJ V )^XA
e&l Jl*- ^ l^av£< I ^ .5
A/ y~+> *2 JU-f U? jUx^.1 ^ aOaj
5 lil <2 LUxsk.l iJUilfJ ^^Uil y^
** >> uV ** d»‘ £*k c?* ^ o'/ 5
That is : —
[The persecuted Muslims] somehow or other, reached
different ports [of South India]. The Hindus, seeing
them of a different nationality, prevented them from
landing. After long solicitude and humble petition,
however, they let them settle in those ports. This was
on the condition that they (the Muslims) would follow
Hindu customs and would wear the costume of the
1 Maqrlziy, Khitat , ed. Bulaq I, 200, or my Corpus.
1 o^s;U by ‘Abdul-Jabbar Khan, p. 40.
JURISDICTION
109
country. The poor Muslims were constrained to accept
the terms ; and "as the country, so the dress," they took
to wearing Hindu costume. They took to different
professions according to their conditions. They had to
be very careful, and they observed extreme scruples
[lest they be detected]. So they performed the azdn
(call to the religious service) and the recitation of the
Qur’an in a way that no Hindu could hear them.
(3) Muslims had penetrated in the very time of Caliph
‘Umar into the seacoast of Bombay and Sindh. 1 When the
Hindus recaptured Sindhan, they left the mosque in the
possession of the Muslim population which did not evacuate
the region, where it could hold its Friday service and even
pray for the Caliph.*
(4) Mas’udiy visited India in the first decade of the
fourth century of Hijra. He writes : In the year 304, I
visited §aimur (modern Chaul ) which is part of Lar (Gujrat)
and is ruled by Balhara. The name of the prince who ruled
at that time was Chancha. There were about ten thousand
Muslims, including the Baydsirah, natives of Siraf, ‘Uman,
Basrah, Baghdad and other regions who had married there
and settled there permanently. Among them were rich
merchants like Mtisa-ibn-Ishaq as-Sandaluniy who occupied
at that time the post of Hunermah. . . . Hunermah signifies
the post of the chief of the Muslims, for in this country the
king appoints the most distinguished Muslim as the chief
of the Muslim community, to whom he delegates all their
affairs. By the term Baydsirah, singular haisar ; they mean
1 Al-Balsdhuriy, ch “ Conquest of Sindh ” ; Qudamah-
ibn-Ja'far, t ) IV < ch. “ Conquest of Sindh” (MS. No. 1076,
Kdprulii, Istanbul).
s QudSSfliah, op. cit , last page of the Istanbul manuscript, ch. VII,
section 19.
110
MUSLIM CONDUCT OF STATE
those who were born in India of Muslim parents. 1 *
The same author says : In the whole of Sindh and Hind,
there is no king who respects Muslims more than the
Balhara. Islam is strong and protected in his kingdom.
There are petty mosques as well as cathedral mosques full
of Muslims. Its rulers rule for forty and fifty years and
even more, and the people of this country pretend that the
length of the age of their kings was due to their justice and
benevolence to Muslims.*
(5t Another very old author, the navigator Buzurg-ibn-
Shahriyar (of the middle of the fourth century of Hijrah)
mentions : Theft is generally punished in India by death.
If the thief be a Muslim, he is adjudicated by the Hunarman
of the Muslims who judges according to Muslim law. The
Hunarman is like the Qadl in Muslim countries. He is
selected from among the Muslims. 3
The same author tells us that once a newcomer, a
Muslim sailor, violated the sanctity of a temple in §aimur.
One of the priests caught hold of his hand and took him
before the king of §aimur and related to him the whole
affair. The sailor confessed that he had done that. The
king asked the people around him : What should we do
with him ? Some said : Let him be trampled by elephants.
Others said : Vivisect him. No, said the king, this is not
permissible, since he is an Arab, and there are pacts be-
tween us and them. So one of you should go to al-‘Abb3s-
ibn-Mahan, the Hunarman of the Muslims and ask him :
What would you do if you found a man in similar conditions
in a mosque ? And see what he says 4 . . .
1 Muruj adh-Dhahab (European ed.), II, 85-86.
* Idem, I, 382
* Merveilles de I’Inde PP. 160-61.
4 Idem, p. 143.
JURISDICTION
111
(6) Ibn-Hawqal, too, testifies to the same custom in
India as well as in many other countries. He says : Now-
adays it is a Muslim who governs them (t.e., the Muslim
colony' on behalf of the Balhara, who delegates to him the
authority over them. This custom I have found in many
other countries now under non-Muslim occupation, like
Khazar. Sarir, LSn, Ghanah and Kfighah. In all these coun-
tries the Muslim community does not accept that its chief,
its judge and the witnesses in its disputes be anyone except
Muslims, this even when their number is very small. In
some of these countries I found Muslims who presented
sometimes trustworthy non-Muslim witnesses. If the other
party agrees to it, their evidence is relied upon ; if not, they
are replaced by Muslim witnesses. 1
(7) Malabar had had contact with Arabs of even pre-
Islamic days. Muslim colonies of the South Indian seacoast
date back to the days of the Companions of the Prophet-*
Malabar did not change much during the long centuries.
A comparatively late author, of the time of Portuguese
attacks, Zain-ud-Dln al-Ma‘barIty, states : In the whole
country of Malabar, there is no ruler for the Muslims of
their own who should rule over them, but it is non-Muslims
who rule over them, administer their affairs, and fine them
when they commit some delict. In spite of that, the
Muslims enjoy among the people of this country great re-
spect and power, for it is mostly on account of them that
their cities flourish. The Muslims can hold Friday and ‘Id
services. They (the local chiefs) pay the salaries of the
Qadls and the Mu'ezzins, help in the enforcement of the
rules of the Shari' ah among the Muslims, and do not allow
that Friday service be suspended ; and if anybody tries to
» Ibn-Hawqal, CUU.U, *AJLJLl , pp. 227-28.
* Revue des Etudes Islamiques (1938), p. 104.
112
MUSLIM CONDUCT OF STATE
suspend it, they punish him and fine him, 1 in most cities.
If any Muslim commits a crime which must be punished
with death according to their laws, they behead him with
the permission of the Muslim chiefs. Then the Muslims take
possession of the dead body, bathe it in the ritual manner,
clothe it with shrouds, celebrate the death-service over
it and bury it in the graveyard of the Muslims. . . . They do
not tax the Muslim merchants except the usual tithes, or
the fines when they commit delict punishable with fines
according to their laws. The agriculturists and horticul-
turists are not at all taxed even when they own big properties.
They do not enter the houses of the Muslims without their
permission, even to arrest a murderer, but surround his
house and force him to surrender through constant vigilance
and hunger and the like. They do not put obstacles in the
way of conversion to Islam ; on the other hand, they pay
the same respect to the new convert as to the other Mus-
lims, even when the convert belonged to the lowest caste
among them. In olden times, Muslim merchants used to
subscribe for the help of such a one. 2
(8) Regarding China, Mas‘udly mentions that once a
Chinese official in Khanfu oppressed a Muslim merchant,
who, trusting in the justice of the ruler of the country, went
at once to the capital, put on the red uniform of complain-
ants and attended the court. In due course he was pre-
sented before the monarch who, having ascertained the
1 The writer of these lines witnessed similar conditions in 1939 in
Aundh, a tiny Hindu (non-Muslim) State on the Western Ghats. There
the Raja functioned as the chief Qadi, and Muslims were fined by him if
they neglected the congregational Friday service. For conditions in
Cochin, etc., see Qadir Husain Kh an's article in the Christian College
Magazine , Madras, Nov. & Dec. 1912, Jan. & Feb. 1913.
* sjP** *3 (ed. Lisbon),
pp. ^°-ri/32-33. (end of part iii).
JURISDICTION
113
story from several of his secret service officers, punished
the official, and, bestowing on the Muslim merchant right
royal gifts, told him : If thou likest, sell thy goods to us at
bargain price ; otherwise thou hast the right of final de-
cision regarding thy goods. So, stay if thou likest, sell as
thou pleasest, and return in safety wherever thou intendest
to go. 1
(9) Another author (of as early as the third century of
Hijrah) is more explicit : The merchant Sulaimgn reports
that at Khanfu which is the rendezvous of merchants, a
Muslim is charged by the ruler of the country to adjudicate
the disputes that arise between the members of the Muslim
community arriving in the country. Such was the desire
of the king of China. On days of festival, this chief of the
Muslims conducts the service of the Muslims, pronounces
the sermon and prays for the Caliph there-
in. The merchants of Iraq cannot rise against his decisions.
And in fact he acts with justice in conformity with the
Qur'an and the precepts of Muslim law.*
(10) Regarding people near the Caspian Sea, Mas’udiy
records : In the country of Kljazar, the Muslims are the
elite because they constitute the army of the king. They
are known there as Larshiah. They were immigrants from
fthwarizm. Long ago, after their embracing Islam, a
famine attacked their country and they migrated to Khazar.
They are very fine soldiers and the king of Khazar trusts
in their prowess in his wars. They have settled in his
country on conditions they have contracted, viz., firstly,
open profession of their religion and mosques and the
service calls (adhan ) ; secondly, selection of the minister
1 Muruj (ed. Europe^ I, 307-12.
* Relations des Voyages du marchand Soleyman, 1UU)
ed. Reinaud, pp. 13-14.
114
MUSLIM CONDUCT OF STATE
(vizier) from among them . . . ; thirdly, if the king of Khazar
has to fight some Muslim power, they would not be employ-
ed ; else they would fight against any other nation. They
provide the bodyguard of the king . . . They have Muslim
Qadis. In the capital of Kbizar the custom , is that there
are seven judges, two Muslims, two Khazarites. two Chris-
tians, one for Slaves and Russians and all the rest of the
Ignorant People. ... If any difficult question arises, they all
refer it to the Muslim judges and agree to what the Muslim
law provides for it. . . They have mosques in which there
are Qur’Snic schools for children . 1
In general, Muslims temporarily residing in a foreign
country are recommended very strongly, in Muslim literature
of law and morals, to behave in an exemplary and law-abid-
ing manner : to observe fully the conditions of their permit
or passport and to refrain from any act of treachery. So
much so that even if war has broken out between their
local government and their home government, the Muslim
subject must refrain, as long as he is staying in the enemy
country, from warlike activities and treacherous deeds . 2
They must observe in all details the conditions of their .
passport ; and avoiding treachery and violation of pledge
alone they may, if possible and practicable, remove the
wrong done to their co-citizens . 3 In one particular case,
however, Muslim law is emphatic and urges the Muslims
abroad to leave no stone unturned It provides that if
women and children of the subjects of the Muslim state,
no matter whether Muslims or non-Muslims or even rebels,
are captured by the state in whose territory the Muslim
now resides, and these captives are brought into the country
1 Muruj (ed. Europe) II, 10-12.
* As-Sarakhslv. Mabsut, X, 98.
* Ibid.
JURISDICTION
115
where he is living, he is entitled, if he likes, to renounce,
first, the protection of the local government and then fight in
order to relieve women and children of his compatriots . 1
The greater importance of women and children lay obviously
in the fact that slavery was rampant in those days and their
apostatising was more greatly feared than that of grown-up
soldiers. Still two points are to be reminded. Without
previous notice of renouncing the protection of the permit-
ting state, the act contemplated is not permissible. Second-
ly, the obligation to protect women and children is not
confined to those of Muslims only ; it applies as emphatic-
ally to all the citizens of the Muslim state irrespective of
creed and status.
Muslims abroad are not allowed to join forces with the
local government against its foe, except in self-defence or
when it is feared that the enemies of their protector state
would not respect the neutrality of the resident Muslims.*
In case of self-defence, there is no difference whether the •
state warring against the local government is non-Muslim
or rebel-Muslim . 3
(d) Citizens of one Muslim State in another.
We have seen above, under section (a), that all Muslims
belong to one and the same nation. We have also seen
that the division of Islam into several states, hostile at
times, had to be admitted by jurists by force of facts - 4
Very little is known, in classical times, of the special
treatment reserved for such Muslims as go from one
Muslim state to another. Therefore I quote the following
interesting passage of Ibn-Jubair which is the only one I
have come across so far :
1 As-Sarakhslv. Mabsut, X, 98,
* Ibid., pp. 97-98.
* Ash^Shaibanlv. vJ-oVlt in loco.
4 Cf . supra , ch. 11, Independence, “States.”
116
MUSLIM CONDUCT OF STATE
Between the old and new Cairo there is a mosque attri-
buted to AbuV Abbas Ahmad-ibn-TQlQn. It is an old
mosque , with fine workmanship and grand structure. Sultan
Salahuddin has allotted it as the boarding-house for the poor
Magharibah (i.e., people of Western North Africa) who
live and study there. He has also sanctioned for them
monthly bursaries. The most curious thing which I was
told by one of them was that the Sultan has delegated the
adjudication of their cases to them and nobody is to govern
them. So, they have elected one of themselves and obey
him and make him arbitrate in the disputes that may arise
between them. They live in comfort and at ease. 1
There are, however, instances of individuals migrating
from the Abbasid Empire, for instance, to Spain, and vice
versa, scholars, traders and others, without any hardship
and restriction or any privileges. The close watch on sus-
pected spies is beyond our scope here. There are instances
also of rulers sending special missions to purchase
goods, manuscripts and the like. But they do not seem to
have given rise to any legal arrangements for their treat-
ment.
In our own times, owing to Europeanised conceptions of
the policies of the Muslim states, there are provisions how
to treat foreigners, and they apply to Muslims as well. We
need not take notice of them, as they are not rules of
Muslim law. In spite of all such rules, it cannot be denied,
and my own personal experience testifies to it, that a foreign
Muslim feels quite at home in any and every Muslim country
of the world, and in private he is treated with the affection
reserved for the nearest kin. Even government officials
help him, in their private capacity, as much as they can.
1 Ibn-Jubair p. 52 (Gibb Memorial Series, 2nd ed.).
JURISDICTION
117
(e) Muslim Citizens of a non- Muslim State.
So far as the practical implications of law are concern-
ed, there is scarcely any difference between this category
of foreign Muslims and the one just preceding We have
already seen in chapter 2 of this part, under State, that
Muslim law recognises the existence of independent non-
Muslim states in peaceful relations with the Muslim state,
having a Muslim minority as their citizens. We have also
seen there, in the Qur’Snic quotations given, how such a
non-Muslim state is free to make laws for its Muslim citi-
zens as it pleases, and the Muslim state has no right to
interfere on behalf of its co-religionists. Accordingly, it
will be the terms of passport which will apply if they come,
for temporary purposes, to Islamic territory.
In the time of the Prophet, a treaty of peace and extra-
dition was concluded between the Islamic state and the
city-state of Mecca, and the Prophet returned all the
Muslims who came to him to seek refuge, this in spite of
the fact that he was fully convinced of the fact that the
Muslim minority was subjected to unbearable hardships
and persecution in Mecca. 1
if) Resident Aliens in Muslim Territory.
Before we begin to discuss the general rules applicable
to them, some preliminary remarks may be helpful in under-
standing the background against which they were originally
set.
In the classical times of Islam, the law of passports
seems to have been that the subjects of a state with which
treaty relations existed ' ;'>) needed no extra per-
mission from the Muslim state to enter its territory
1 Tabariy. History. 1, 1547ff., 1551ff.
118
MUSLIM CONDUCT OF STATE
(^LwiY(jl>) for a sojourn . 1 Again, those foreigners of third
countries who were allowed to enter a state which was in
treaty relations with the Muslims, could, further, safely
enter Muslim territory . 2 In other words, friends of friends
were also considered friends Obviously this could not
apply if the third state was at actual war (<— with
the Muslim state. In the absence of treaty relations, and
non-existence of hostilities between his state and the
Muslim state, the practice of the Prophet was to spare
them unmolested if their bona fides were established, and a
sort of posterior permit was granted. So, al-Bukhariv men-
tions that once a foreign non-Muslim came to Madinah
with a herd of sheep and goats, apparently without any
previous permit. Not only that he was not molested, but
even the Prophet bought a goat of him . 3 There is mention
of the arrival of Nabatean caravans to Madinah in the time
of the Prophet and afterwards , 4 and obviously they came
from beyond Muslim territory, either from Syria or Meso-
potamia. If, however, a subject of a belligerent state
entered Muslim territory without previous permit, he could
be killed or enslaved or treated otherwise at the option of
the authorities. The last also applied to his belongings.
Needless to add that ambassadors have always been except-
ed from these rules. But this last category, the subjects of
1 As-Sarakhsiy, ^ IV, 133, idem. X, 89, re-
ferring to the classical case of Abn-SufySn’s journey to Madinah during
the truce of Hudaibiyah. But he came more as an envoy than in his
private capacity.
* Al-Kasaniy, gilLoJl giljo, VII. 109.
* Bukhariy, bk. ^ ch. g* gjuJl^ ^ 1 ; bk. ch.
4 Mas'Qdiy. , p. 248. AbU-‘Ubaid, , § 1397;
al-Qastallaniy, I. 223.
JURISDICTION
119
a belligerent state entering Muslim territory, -will be dealt .
with more properly in Part iii of this monograph.
Moreover, to classical Muslim jurists, status of bellige-
rency or friendliness is personal, not local. Thus, a subject
of a friendly state found in a belligerent place on its con-
quest by the Muslims, provided chat he did not take part
in the hostilities against the Muslims and did not act con-
trary to his obligations of neutrality, was still safe “just like
a non-Muslim subject of the Islamic state found in a bel-
ligerent territory when the Muslims conquered it.’’ 1 And
he must be allowed safe return.* If, however, such a friendly
alien was brought there lawfully by the belligerent state,
for instance, in the capacity of prisoner of war and was duly
enslaved, he was to remain such,*
A passport could be annulled in the following cases : —
1. Expiration of the prescribed period. 4
2. Breach of conditions expressly mentioned therein as
annulling the permit, 5 or implied as such in every permit.
3. Forged passport on discovery. 6
4. Transmitting secrets of the Muslim state to the
enemy. 7 But the mere committing of criminal acts, even of
murder, did not automatically bring the passport to an end
In such cases the criminal was to be tried and punished by
a court of law. 8
1 Sarakhsly, ,,U , X.. 89.
1 KasanIy,jMi-aJ| giljo . VII, 110.
* Sarakhsly. U . . . . . LI , X, 88 ; KSsanly, VII, 109 ; Fatawi 'Alamgiriyah,
p. 222.
* Kasaniy. VII. 110.
5 Sarakhsly. 1^,226-27.
* Cf. Sarajchsiy, u — L | , X, 93.
7 AbU- YUsuf, KhnrSj, p. 117, cf. Radiyud-Din as-Sarakhstv. kis'.ll f?l.
3616, (MS HyderaOad State Library).
* Sarak])siy, IV, 226, ^ ^ 6,Jl
fol. 3616 (MS Hyderabad).
120
MUSLIM CONDUCT OF STATE
Generally speaking, non-Muslim resident aliens and
other visitors have been accorded by Muslim law the same
status as non-Muslim subjects of the Muslim state. Ash-
Shaibgniy explicitly says :
“It is a principle (of Muslim law) that the sovereign of
the Muslims has the obligation to protect foreigners
coming with permission, as long as they are in our
(Muslim) territory, and to do justice to them — this in
the same way as he has an obligation regarding non-
Muslim subjects." 1
A foreign visitor is under the jurisdiction of Muslim
courts during his stay in Muslim territory,* yet he is free to
indulge in certain acts penalised specially for the Muslims,
such as intoxication. In this respect, however, there is
some difference of opinion between AbQ-Yusuf and Ash-
Shaibaniy : the former maintaining that a foreigner would
be subject to the whole of Muslim penal code with the one
exception of wine-drinking, and the latter making a distinc-
tion between the infringement of what are called Rights of
God («&1 and Rights of Men Jb*»»), holds
that a foreign non-Muslim will not be punished except for
what is against the rights of men, such as defamation,
murder and the like. 3
Ash-ShaibSnly records :
“ ‘A$lah-ibn-Qais al-Kilsbly reports, the Prophet has
said : Whoever commits murder or fornication or theft
(in our territory) and escapes, and then returns with
permission, shall be tried and. punished for what he
wanted to escape from. Yet if he has committed murder,
or fornication or theft in the territory of the enemy and
* Sarakksiy, y*. W, 108, cf. p. 133 also.
* Sarakksiy, ibid. 1 Cited, ibid.
JURISDICTION
121
came with permission, he will not be tried for what he
committed in enemy territory. 1 *
Sarakhsly adds :
“ This is the basis for the savants of our school of
thought to rely upon.”
On this basis, not only a delict or crime against a subject
of the Muslim state, whether Muslim or non-Muslim, but
even against a subject of his own state falls under the
juridical competency of the Muslim court.* Whether for
certain such acts he should be tried according to local laws
or according to the laws of his own country depends upon
treaty stipulations. In short, a foreign visitor will be
responsible to the Muslim court for all his acts during his
stay in the Islamic territory, and not for acts committed
outside the boundaries of the Muslim state, even if against a
Muslim subject. 3
A foreign visitor will have the right to bring a suit even
against a local Muslim, in the Muslim court. 4 5 According
to classical Muslim jurists, this right is not forfeited by the
outbreak of war between his country and the Muslim state
where he is residing. 9 This is valid even when Muslim
residents are deprived of this right. For one’s burden
cannot be borne by others (Qur’an, 6 : 165) and the Muslims
must fulfil their promises. 6
Litigations between foreign visitors and Muslim subjects
regarding debts, securities, pledges and mortgages, inheri-
tance, wills and the like, belong perhaps more appropriately to
1 Cited ibid.
1 Sarakhsly. , IV, 109 ; Radiyud-DIn as-Sarakhsiy.
op. cit. % ch. Hukm 9 ul-musta'mini fol. 601a (MS. Waliuddln, Istanbul).
3 Sarakhsly. X, 93.
4 Ibid.
5 KSsaniy, VII, 107, IL 15-16.
• More on this in part III, War.
122
MUSLIM CONDUCT OF STATE
Private International Law or special treaties rather than to
our subject.
Import customs and other taxes levied on foreigners or
foreign goods may be governed by Municipal law as well as
express treaties. Ash-Shaibanly, for instance, says, if the
property of the minors or women of Muslim citizenship are
exempt in a foreign country from customs duties, the subjects
of that state will be similarly privileged in Muslim territory. 1
There is an aspect of the jurisdiction of non-Muslims,
subjects as well as foreigners, which we shall describe in the
following section, under “Special Privileges.”
Extraordinary Cases in Jurisdiction.
As a general rule, a territory falls under the judicial
competency of the state under whose dominions it lies. But
there are exceptions and extraordinary cases which will be
described immediately.
(2) Head of the State.
It cannot be denied that heads of states occupy a unique
position within the realm, yet unlike many systems of law
which declare that the king can do no wrong, Muslim law
does not give this extreme immunity Whatever the
Muslim ruler does in his capacity of ruler, such as in the
administration of justice, no suit may be instituted against
him. On the other hand, if the ruler does a thing in his
private capacity, he is as liable to be tried before an ordinary
Muslim court as any other Muslim subject, for the rulers are
as much subject to law as the citizens of a state. Thus it
was that the Prophet heard cases against his proper person.
In the time of the Caliohs, complaints were made in the
court of the Qsdl of the metropolis, and AbG-Bakr. 'Umar,
'Ally and many an Umaiyad and Abbasid Caliph attended
1 Ash-Shaibanly. , I, 1506, ch. Zakat (MS. WafS-‘Atif, Istanbul).
JURISDICTION
123
the court at the summons of the judges. On the same basis
if the rulers had any private claiqa, they instituted a suit in
the court and did not assume the position of judge as well
as party to the case. Cases of the latter kind, however, are
met with during the early classical times, the Orthodox
Caliphate ; I have not come across such cases in later history
of Islam.
As the subject is rather of unusual importance, I should
like to give the details of the cases, in order that the reader
may have a better perspective :
The Time of the Prophet . — All the following cases have
been taken from the biography of the Prophet by ash-
Sha'miy, 1 chapter “His giving retaliation against his own
person, ” if not otherwise stated : —
(а) Ibn ‘Asakir records on the authority of Hablb-ibn-
Maslamah : Once the Prophet unintentionally injured the
skin of a Bedouin, who claimed retaliation. Then the angel
Gabriel came to him and said : O Muhammad ! Lo ! God
hath not sent thee as either a tyrant or an arrogant.
Whereupon the Prophet called upon the Bedouin and said :
Take retaliation from me.
(б) Ibn-Ishaq records the following on the authority of a
certain Companion of the Prophet who said : I pressed my
way through on the day of liunain, and on my feet were
heavy sandals with which I trampled on the leg of the
Prophet. He whipped me with a whip in his hand . . . The
next morning he caused me to come and gave me eighty goats
and said : Take this for that.
(c) Ibn-Hibban records : On the day of Badr, the Prophet
was inspecting his army, drawn up in files, and dressing the
formation if anybody was not in his proper place. He had
a baton in his hand with which he struck a soldier on the
1 I have consulted the manuscript in the Qarawlyln Mosque, FSs.
124
MUSLIM CONDUCT OF STATE
belly who had pushed a hit forward. The soldier complained
and demanded retaliation. The Prophet raised his shirt
and offered his belly for treatment in a like manner. (The
story is also mentioned by Ibn-Hisham, p. 444).
(d) Ad-Darimly, Ibn-IJumaid and ‘Abd-ar-Razzaq re-
cord on the authority of Abfl-Hurairah and AbQ-Sa‘ld
(al-Khudrly) : Once there was an old man among the
Meccan Muslims who wanted to have a private talk with
the Prophet. The Prophet was about to start on an
expedition. On the morning of the start, he mounted
on his camel and wanted to go to the camp to lead the
morning service before departure, when the old man stopped
him and would not let him proceed before attending to
him. The Prophet whipped him away and went. After
the service, he turned to the assembly with a grave face
and said : Where is the man whom I have just whipped ? —
and repeated it several times. The man was terrified and
began to apologize but the Prophet said : Let him approach ;
and when he did so, he said : Take this same whip and take
your revenge. He said : Impossible that I whip the Prophet
of God ! The Prophet said : Except that you forgive !
(e) Ibn-yanbal, Abu-Dawud, and an-Nasa’iy record on
the authority of Abu-Sa‘ld al-Khudriv who said : Once
when the Prophet was distributing some booty, a man came
and leaned upon him. He struck him with a baton in his
hand and hurt his face. Whereupon the Messenger of
God said : Stand up and take thy talion !
(f) Ibn-Q5ni‘ records on the authority of ‘Abdallsh-ibn-
Abl ( ? Abi-Umamah) al-Bahiliy who said : I came to the
Prophet during his last pilgrimage and saw him on his
camel. I clasoed and folded his leg with my arms. He
whipped me I said : Talion ! O Messenger of God. He
handed me the whip whereupon I kissed his leg and foot.
(g) Muhammad-ibn-'Umar al-Aslamly records: When
JURISDICTION
125
the Prophet was proceeding from Ja’if to al-Ja’irranah,
AbG-Dahm was riding on his camel beside the Prophet
and his sandal rubbed the leg of the Prophet and pained
him. The Prophet said : “ Thou hast hurt my leg. With-
draw thy foot." And he whipped my leg. AbG-Dahm
says : I was terrified lest something should come in the
Qur’an regarding me and I should be scandalized. Although
it was not my turn, I went to graze my camels that day,
fearing lest he should call upon me. In the evening when
I collected the beasts and went to the camp, people told me
that the Prophet was inquiring after me. Trembling I went
to him. He said : Thou didst pain me with thy leg and I
whipped thee. So take these goats as a recompense for my
blow. AbG-Dahm says : The pleasure of the Prophet was
dearer to me than all the world and that therein is.
( h ) In the closing days of his life the Prophet addressed
a public gathering and said :
People! You may have had claims against me. If
I have whipped anybody’s back, let him retaliate on this
my back. If I have condemned or censured anybody’s
honour, here is my honour to take revenge upon. If
I have taken anybody’s property, here is my property ;
let him take it, and let him not fear higgling on my part,
as it is not my habit. In fact, dearest to me is the one
who takes his claim from me if he has a right thereto, or
forgives me. Thus I shall meet my Lord with clear
conscience. A man rose and claimed that the Prophet
had borrowed some money from him. This was at once
paid to him . 1
(t) Al-Baihaqiy, Ibn-Hibban, af-Tabaranly and AbG-
Nu’aim record : Once Zaid-ibn-Sa'nah, a Jew, came to the
1 Not quoted by ash-Sha'mlv. Cf. Ibn-al-Athlr, Kamil, II, 241 ; Ibn-
Hanbal, Musnad, II. 317, III, 33; fabariy, History, 1, 1801-02.
126
MUSLIM CONDUCT OF STATE
Prophet and claimed the immediate repayment of what the
Prophet had borrowed from him, and came to strong words.
‘Umar, who was present, could not tolerate it. But on his
interference the Prophet remarked : ‘Umar, you would
better have advised him to claim in a proper way, and
advised me to repay in a proper way. 1 2 — This has the germs
of a reference by the Prophet of his own affairs to a third
arbiter. However, the position of the Prophet was unique,
and to Muslims he was utterly incapable of committing
injustice even when he himself was a party to the case.
The Qur’anic verses (such as 8 : 68 , 80 : iff., etc.) which
record Divine reprimand to the Prophet, testify to the same
effect, signifying that God would correct him at once and
not let him persist in error.
The Time of the Caliphs . — In the time of the Caliphs,
immediately after the Prophet, however, the principle was
acted upon that party and judge cannot be in one and the
same person, not even the Caliph <3 V ^»L«V5 0 l)
jja.. Hence, whenever the Caliphs had any suit to
file, or one was filed against them in their private
capacity, the judge of the local court heard the case. Cases
of this kind have been recorded concerning Abu-Bakr, 3
‘Umar, 4 * ‘Uthman, 3 ‘Aliy, 6 the ‘Abbasid al-Mansur, 7 the
Spanish al-Hakam-ibn-Hisham-ibn-‘Abd-ar-Rabman-ad-
Dakhil. 8 and others up to modern times, all testifying to the
same effect. Their details fall out of our scope here. For
certain cases and discussion see also al-Mawardly m loco.
1 Not in ash-Sha'miy. I have quoted from Shibll, Or**** ’ IL
355-56 (2nd ed.). ^
2 Sarakhsiy, Mabsut, XVI, 73.
* Ibn-Sa‘d, 1/2, p. 97.
4 Ibid. Sarakhsiv. Mabsut, XVI, 73-74 ; AbG-YOsuf, Kharaj, p. b5.
* Sarakhsiy, Mabsut, XVI, 74.
* Idem, p. 122.
7 Al-Kindiy, Wuldt Misr, pp. 374ff.
* Al-Maqqariy, , o.kJ| -tij . I, 557ff. (ed. Europe).
• •• c
JURISDICTION
127
There is, of course, not the slightest doubt that when a
person is a sovereign in his dominions and at the same time
a citizen in others, he is subject to ordinary jurisdiction in
the latter. The case of Jabalah-ibn-al-Aiham, the ruler of
Gbassan, may be mentioned in this connection as a classical
example. He was ordered by Caliph ‘Umar in Mecca to
conciliate a Bedouin whom he had hurt, otherwise retalia-
tion would be' taken upon him in the ordinary process. 1
There are, it is to be noted, some obscurities in this parti-
cular story, yet the principle holds good and is admitted
without question.
(2) Envoys and Ambassadors.
These will be dealt with later in a separate chapter.
(3) International J udges and Arbitrators.
During the civil wars of the time of ‘Ally and Mu'awiyah,
two arbitrators were appointed, one by each party. These
arbiters were granted special privileges by both the bellige-
rents, the least of which was protection of life and property.
We shall revert to it in a later chapter.
(4) Public Armed Forces.
When armed forces enter a foreign country in hostility,
obviously they are not under the local jurisdiction. But the
question whether camps of such armies become for the time
being a part of the territory of the state to which the army
belonged, has been answered by Muslim jurists in the
affirmative : —
(0 Muslim Army :
{a) “ If the Caliph or the governor of Syria undertakes
an expedition. . . his camp will be considered as Muslim
* Ibn-Sa'd, 1/2, p. 20 Shibll, , II. 179 ( Life of 'Umar).
128
MUSLIM CONDUCT OF STATE
territory.” 1
(6) “ If the Muslim army enters belligerent territory,
the Muslim camp will be treated as Muslim territory." 2
(c) “ If they retort : Is it not that the slave embrac-
ing Islam and taking refuge in a Muslim camp becomes
emancipated ? And according to you the emancipation
can take effect only in Islamic territory. We would
reply : If the slave comes to that place when there is no
Muslim camp, he will not get freed. He gets freed only
when he takes refuge with the army. And the army
possesses the requisite resisting power.” 3
(d) The Muslims are bound to protect the resident
aliens in their territory. Hence, if some belligerents
attack Muslim territory and take the resident aliens
prisoners, “and pass by a place where the Muslims have
a * resistance ’ in enemy territory, it will be incumbent
upon such Muslims to help the resident aliens and relieve
them just in the same way as they would do had the
prisoners been non-Muslim subjects of the Islamic state. 4 ”
(e) “ Army affords the same protection as Territory ,” 5
(it) Enemy Army.
(a) “ If an army of enemy infidels entered Muslim
territory and a Muslim should go to them by permission
and contract with them for some transaction, his case
would be on the same footing as if he entered their
territory. For a military camp possesses a resisting power.
And Islamic jurisdiction does not run in their camp just
as in their territory. . .Don't you see that if the Muslim
army had entered enemy territory and the transaction had
1 Kasanly, VII, 132.
* DabOsIy, , fol. 1516 (MS. Walluddln, Istanbul).
* Idem, fol. 143a.
* Sarakhsly, y u*JI , IV, 112.
* Sarakhsly. LyLxJ,! . X, 94.
JURISDICTION
129
taken place there, it would have been treated, as if it had
taken place in the Muslim territory ?”*
But whether the entry into allied lands, with the permis-
sion of the allied state, will bring the army under local
jurisdiction, is a question the definite answer of which cannot
be given on the basis of classical evidence. In any case it
would depend largely upon the terms of stipulation by which
such armed forces are allowed to enter one’s territory,
whether they should be treated as ordinary resident aliens
and visitors or should enjoy autonomous jurisdiction.
(5) Neutralized Land and No Man’s Land.
This has been dealt with to a certain extent under the
chapter on Property ; and we shall further discuss it under
part IV, Neutrality.
(6) Special Privileges , Capitulations, Exterritoriality.
For commercial and other purposes of mutual benefit,
foreigners have, from time immemorial, been attracted and
given special privileges and inducements. It is said that as
early as the sixth century before Christ, Pharaoh Amases of
Egypt granted to Greeks settling in the Nile Delta the right
of adjudicating their disputes by their own judges, according
to their own laws, without interference on the part of the
local authorities. 8
The Qur’an commanded the same to Muslim rulers re-
garding non-Muslims. 1 * 3 When the city-state of Madlnah
was established with the Meccan Immigrants, Madlnite
Arabs and Jews as constituting its confederal units, and with
Muhammad as the supreme chief, the Jews re tained their
1 Sgrakhsiv. IV, 132,
* Cf. Zeitschrift der Akademie far Deutsches Recht, Munich, (October,
1936), p. 944, “ Die Fremdengerichtbarkeit in Agypten," by Dr. Walter Simon
* Qur’an, 5 : 43, 50, 66-69.
<130 MUSLIM CONDUCT OF STATE
judicial autonomy except that Muhammad was recognized
as the final judge if and when they referred (heir cases to
him at their option. 1 History records that in cases where
the parties were Jewish and they appealed to the arbit-
ration of the Prophet, he administered them their personal
law.* A passage of the Qur’an may be read with interest
jn this connection :
If then they have recourse unto thee (Muhammad),
judge between them or disclaim jurisdiction. If thou
disclaimest jurisdiction, then they cannot harm thee at
all. But, if thou judgest, judge between them with
equity. Lo ! God loveth the equitable. How come
, they unto thee for judgment when they have the Torah,
wherein God hath prescribed for them commands ? Yet
even after that they turn away. Such folk are not be-
lievers. . . Say : O People of the Scripture ! Ye have
naught (of guidance) till ye observe the Torah and the
Gospel and that which was revealed unto you from your
Lord (5 : 42-43, 68).
When the Christians of NajrSn (Yaman) and Ailah
(’Aqabah) and the Jews of Khaibar. Maqna, etc., submitted
to the Muslim state, the Prophet conceded to them judicial
autonomy where the parties were of the same community.
Of course when one of the parties to the litigation was
Muslim, the case was tried by state courts and not by com-
munal tribunals.
“ During the time of the Orthodox Caliphs, the system
was further developed, and we read, for instance :
i 1 . * ' ' i
1 1 For text of the constitution see Ibn-Hisham or my Corpus , No. 1, i
42. 25.
* For one case see Ibn-Hisham , pp. 393-95; Abu-Dawud , XI, 152;
Bukhariy. 61 : 26, 97: 51 ; Mas‘udiy, Tanbth,p . 247, etc. For another
case see Abu-D&wUd, II, 161 ; Tabariy, Tafsxr , V, 127 ; Muslim, 28 : 15ff.;
Bukhariy, 44: 1 ; Wensinck. s.v. ^1*5.
JURISDICTION
134
The most important innovation of the Muslims which"
the Jacobites most heartily welcomed, was that each
religious community was recognized as an autonomous-
unit, and spiritual leaders of such communities were
accorded temporal and judicial powers in considerable
numbers. 1
Another contemporary evidence of the time when only
15 years had- -passed since the conquest of Syria, in the time
of the Caliph ‘Umar, is given by a Nestorian priest who
wrote to a friend of his in the following terms :
These Tayites (i.e., Arabs) whom God has accorded
domination in these days, have also become our masters ;
but they do not combat the Christian religion at all ;
on the other hand, they protect our faith, respect our
priests, and saints and make donations to our churches
and our convents. 7 8
We possess greater details of the conditions prevailing
during the ‘Abbasid Caliphate. 5 It was the same Qur anic
principle acted upon all along, even when Sultan Muhammad
conceded some privileges when he conquered Constan-
tinople, privileges later developed into the much abused
capitulations in Turkey and elsewhere in Islamic countries.
(7) Extradition.
In spite of insistence by each state on its right to exer-
cise jurisdiction over all that is situated within its territory,
mutual interest often leads to the conclusion of treaties with
other states for extraditing criminals. The extradition is
' I
1 Karalevski, in : Dictionnaire d'Histoire et Geographic EccUsiastiques ,
s.v. Antioche, col. 594. %
3 Assemani, Bibl. Orient , III, 2, p. xcvi ; De Goeje, Memoire sur la
conqutte de la Syrie , p. 106 (2nd ed.).
3 See, for instance, the instructions issued to such communal chiefs at
the time of their investiture, in Ibn-FadlallSh, £\Xk*aJLb
and in al-Qalqashandly, in loco .
132
MUSLIM CONDUCT OF STATE
sometimes mutual and rarely one-sided. The earliest ex-
ample of this latter kind is the pact of liudaiblyah concluded
by the Prophet with the city-state of Mecca in the year
6 H. whereby : “Whoever from among the Quraishites went
to Muhammad without permission of his superior (mawld),
Muhammad shall extradite him to them ; yet whoever from
among the partisans of Muhammad went to the Quraishites,
they will not extradite him." 1 * Another classical example
is that of the year 31 H., when a pact was concluded where-
by the King of Nubians (Sudan) accepted the condition
that : “ It will also be incumbent upon you to repulse
towards the territory of Islam all fugitive slaves who come
to you but who belong to Muslims. Further, you will
repulse every Muslim combating Muslims and taking refuge
with you. You shall return him from your territory to-
wards the territory of the Muslims. You shall not incline
to him nor protect him.”*
For treaties of mutual extradition see al-Qalqashandly. 3
1 For full text. Ibn-Hishdm pp. 747-48 or my Corpus.
* For full text, al-Maqriziy, Khitat (ed. Wiet), tome 3, partie 2,
pp. 290-92 or my Corpus.
* ^y® . XIV, 8, on the authority of al-Ghazzally.
CHAPTER V
Equality of Status
AS far as the rights of action accruing to and duties of
performance binding upon states are concerned, Muslim
jurisprudence recognizes equality between the various states.
But apart from this rather theoretical equality of status,
real equality between states has as much been wanting in
states as in individual citizens. Titles in addressing differ-
ent rulers, lavishness or frugality of hospitality and general
treatment meted out to them, the power and influence
exercised by them— in these and a host of other matters,
equality cannot be observed.
For modes of addressing foreign rulers in the time of the
Prophet see collections of his letters. 1 For later times, Ibn-
Fadlallah’s work v-wyiJl (764 H.), and
later still the classical compendium of al-Qalqashandiy,
may be consulted with profit.
1 My Corpus des Traites or XamUmJI (Cairo, 1940-41),
CHAPTER VI
Diplomacy
INSTANCES of envoys temporarily sent to foreigrf
Courts, and of .secret agents posted in foreign countries,
exist from time immemorial in human annals. Thus, no
wonder if both these kinds of persons are found in Muslim
history as early as the time of the Prophet. Apart from
spies and scouts sent for military purposes, it is recorded
that al-‘ Abbas was the secret agent of the Prophet in
Mecca , 1 * * * that Anas«ibn-Abi-Murthid-al-Ghanawiy was his
agent in Awfas* (near X^’if)i and that al-Mundhir-ibn-
‘Amr-as-Sa idly alias "A‘naq liyamut" was his
agent” in Nejd 5 keeping him informed of all that passed in
those countries.
As self-sufficiency and self-dependence grew less and
less, giving place to interdependence regarding necessities
and luxuries of life, states were prompted to have greater
international intercourse, commercial as well as political.
I have not yet made any profound study of the com-
mercial agents in foreign countries. My tentative con-
clusion is that intrepid traders have been used to go to
foreign countries before their own state had any diplomatic
relations with them. In olden times, trade caravans used
1 Ibn-'Abdal-Bar, No. 2034 ; KattSniy, 1, 363.
* Ibn-'Abdal-Bar, No. 20 (s.v. Unais); KattSniy, ibid., Ibn-Hajar,
, under Anas.
* MGsS-ibn-'Uqbah, (Fragment, Staatsbibliothek T Berlin,
MS. 1554 PM30).
DIPLOMACY
135
to stay in a country for longer periods than now. The
Local chiefs appointed what are known as the Hunar -
man, Shahabandar and Malik-ut-tajjar in order to regulate
the affairs and disputes of foreign traders. These developed
into European consuls, during the Crusades. And thus
permanent commercial agents came into existence long be-
fore permanent political agents and envoys.
The Prophet himself took the initiative of giving impetus
to trade and commerce even at the expense of state income.
Thus it was that he abolished all inter- Provincial customs
duties within the realm, and the many treaties concluded
by him with tribes submitting to his authority expressly
stipulate that. 1 Foreign trade, however, remained subject
to the usual tithe or whatever percentage was stipulated for
by express treaties and conventions between states. 3 The
treaty for levying a tithe on the traders of Manbij (Hier-
apolis) is said to be the first of its kind in the time of
‘Umar.* The words tariff and douane or cognate words
in European languages, borrowed from Arabic, have a
history in themselves. There is an implied reference in
the writings of ash- Sh aibaniy that sometimes the goods for
trade belonging to minors or women were exempt in Islamic
territories from customs duties. 4 Again, goods of less
value than 200 drachmas belonging to a person were
customs-free.* Abu-Yflsuf records an interesting corre-
spondence exchanged between ‘Umar and his governor,
AbG-Mfls5-al-Ash‘arIy :
Al-Ash’arly wrote : Some traders of ours go to pon-
1 Cf. ray Corpus . index 9.v. “dimes, et exemption de.”
• AbU- Yusuf, Khjrdj , pp. 73, 116 (and generally the whole chapter of
Tithe in this work as well as any compendium of Muslim law).
* Abu-YUsuf, Kkardi . p. 78.
4 Ash-Shaibaniy, , I, fol, 150&, (MS. Wafa-‘Atif, Istanbul).
8 AbU-Yusuf, Khardi. pp. 76-77.
136 MUSLIM CONDUCT OF STATE
Muslim territory where they are subjected to tithes.
‘Umar replied : Levy thou also on theirs as they levy on
Muslim traders. 1
Although AbG-Yusuf has known dumping and "famine
on account of the excess of goods/’ 2 he still believes in free
trade, and quotes the injunctions of the Prophet not to
interfere with prices. 3
As for diplomatic relations and representations, we
have mentioned that at first they were not maintained on
a permanent basis. In his A Short History of the Saracens ,
Ameer ‘All says, however :
“When the provincial governors became the feuda-
tories of the empire, and the sovereignty of the Caliph
dwindled into more or less effective suzerainty, the
confidential messengers were turned into legates of the
Pontiffs, and acted as his resident agents in the Courts
of Nishapur, Merv, Mosul, Damascus, etc. Like the
Papal legates, in the later mediaeval times in Europe,
they accompanied the sovereigns to whom they were
accredited in their military marches. We find them not
only in the camps of Alp Arsalan and Malik Shah, but
also in those of Nur-ud-Din Mahmud and Saladin,
ever active and sometimes meddlesome ; occasionally as
under the later AyQbids, reconciling contending princes,
and settling fratricidal strifes , . . (Cf. Abul-Fida, the
Caliph’s envoy settled the dispute between the sons of
al-Malik al-Muzaffar) , . .
"Each sovereign on his side maintained a com-
missary called Shahna [ read : Shihnah] at the Pontifical
Court, charged with the duty of keenly watching
1 Abli-YGsuf, Kharaj ■ p. 78.
* Ibid., p. 28.
* Ibid., p. 28.
DIPLOMACY
137
the moves of the game on the part of his rivals, for
the struggle for predominating influence over the source
of all legitimate authority was as great at Baghdad as in
Papal Rome. Shahnas [read : Sh ihnahs] were usually
stationed, besides the capital, in places like Wasit,
Bussorah, Tikrit, etc.'’*
In an appendix, the same author says : .
“The Abbaside sovereigns frequently employed a
special envoy to transact confidential business with
neighbouring potentates. The office was called the
Nizam-ul-Hadratain.” 2
After the destruction of Baghdad by Mongols in 656 H.,
there is apparently another gap in the history of permanent
embassies in Islamic countries ; there were no permanent
ambassadors at that time even in Europe.
Reception of Envoys.
In the time of the Prophet, whenever a foreign envoy or
delegation came, we find there was a sort of Master of
Ceremonials who instructed the guests previous to their
reception by the Prophet in the local formalities. 3 The
envoys sometimes disregarded them. 4 There are many in-
cidents in the time of ‘Umar when the Muslim envoys
disregarded certain local formalities in foreign courts,
especially prostration, and caused umbrage. 3
The Prophet, when in Madlnah, used to receive foreign
envoys in the Great Mosque where the (Pillar
of Embassies) still commemorates the place. The Prophet
and his Companions are said to have usually put on fine
1 Ameer- 1 Alt, pp. 407-08 (ed. 1921). * Ibid., p. 622.
* Ibn-Hisham, p. 916; Tabariy, History, 1, 1690.
* Ibid.
* Cf. Ibn al-Athlr, Kdmil, II, 359 ; Broomhall, Islam in China, p. 17. on
the authority of Chinese sources, regarding the envoys of the commander,
Qutaibah, in 713 A. Ch. to the Chinese Court
138
MUSLIM CONDUCT OF STATE
dress at the time of the ceremonial reception of envoys.
A good example of the contrast of the simplicity of early
times as against the grandeur of later times is provided
by the Byzantine ambassador to. ‘Umar, whom he found
sleeping on the ground in the sun unattended by any
courtiers, 1 * 3 and the ambassador of the same empire at the
court of al-Muqtadir Bill ah, at Baghdad. 8
Envoys generally presented gifts from their senders to
the ruler to whose court they were accredited.* Such
things went to the state treasury. The wife of the Caliph
‘Umar once received in return for her gift, a gift from the
wife of the Emperor of Constantinople, but the Caliph
likewise confiscated it in favour of the general exchequer,
and only the value of the original gift of the Caliphine was
given her. 4 There are cases of the Prophet accepting the
gifts of foreign potentates and using them in his official
capacity — and there was no private capacity of his as is
testified to by his dictum that he could not be inherited
from, and whatever he possessed would go to the general
exchequer. 5
The envoys, too, received gifts from those to whom they
were sent. The Prophet is recorded to have willed on his
death-bed that his successor should award gifts to envoys
as he himself used to during his lifetime. 6 The Prophet
once gave an envoy from ‘Uman 500 drachmas, at another
occasion gold and silver girdles, and at other times other
1 (MS. 4075, history, Cairo), fol. 1136.
* Al-Khatib al-Baghdadiy, >!*>•*? 1 , 100-05.
3 Sherueh-ibn-ShahrivSr ad-Dailmiv *^LaL*J (MS. 48
history, Cairo), fol. 396 ; Tirmidhiv. ch. 4,1.x* ; Tabariy,
Hist., I. 2163 ; Again cf„ presents from Muqawqis and Farwah to the
Prophet.
4 Tabariy, History, I, 2822-23 Ibn-al-Athir, Kdmil, III, 74.
8 Tabariy, History, 1, 1826. * Bukhatiy. 56 ; 176 ; Kattaniy, I, 451.
DIPLOMACY
139
things , 1 sometimes more, sometimes less, according to in-
dividual cases. It is generally admitted that, if a Muslim
envoy received a gift on the part of foreign rulers, etc.,
that would go to the state coffers.*
The envoys are officially entertained. There were several
large houses in Madinah, in the time of the Prophet,
specially meant' for foreign guests. There is often mention
of the house of Ramlah-bint-al-Harijh in Ibn-Sa'd, in this
connection.* Another house was known as the Guests’
House No wonder when the Prophet took
special pains personally to entertain the envoys of
Abyssinia , 5 for it was in this country that he had found a
most friendly state even when he was in extreme danger in
Mecca in the early days of his mission. Generally speaking,
envoys were treated corresponding to their personal posi-
tion and that of their sender . 6
Privileges of Envoys.
Envoys, along with those who are in their company,
enjoy full personal immunity : they must never be killed , 7
nor be in any way molested or maltreated. Even if the
envoy, or any of his company, is a criminal of the state to
1 Ibn-Sa'd, 1/2, pp. 40, 43, 66 ; Tabaiiy, History, I, 1574 ; Kattanly, I,
390.
* , Vol. Ill, pp. 265, 66,
Jjfel. According to al-Marghinaniy
jJl MS. Yamj3mi‘, Istanbul, ch. 18), however, envoys
sometimes were allowed to appropriate what they received as gifts.
8 Ibn-Sa'd, ch. wufud ; Kattanly, I, 445ff.
4 Kattanly, I, 445.
‘ ‘Abd-al-BaqI, pp. 45-46.
• Hasan-ibn-‘ Abdallah, <3 ,JjY( ^lS'1 (compiled 708 H.)
7 lbn-Hisham , p. 965 ; Ibn-Hanbal, I, 390 91, 396, 404, 406 ; Abu-DBwud
I. 275.
140
MUSLIM CONDUCT OF STATE
which he is sent, he may not be treated otherwise than
as an envoy. The envoys of the impostor Musailimah
provide good law to whom the Prophet had said : Had
you not been envoys, I would have ordered you to be
beheaded . 1 *
Envoys are accorded full freedom of prayer and religious
rites. The Prophet allowed the delegation of the Christians
of Najran to celebrate their service in the very Mosque
of the Prophet. Muslim historians mention as a curiosity
that these Christians turned their faces towards the East
and prayed.*
Envoys may only in extraordinary cases be detained or
imprisoned 3 So, the Prophet detained the plenipotentiaries
of Mecca until the Muslim ambassador detained in Mecca
returned safe to Hudaibiya where the Prophet was camp-
ing . 4
The property of the envoys is exempt from import duties
in Muslim territory 5 * if reciprocated.® So, ash- Sh aibaniy
says , 7 if the foreign states exempt Muslim envoys from
customs duties and other taxes, the envoys of such states
will enjoy the same privileges in Muslim territory ; other-
wise they may, if the Muslim state so desire, be required
to pay ordinary dues like foreign visitors.
Peaceful Settlement of International Differences.
The object of diplomacy is peaceful solution of inter-
1 Ibid., also Sarakhsiy. Mabsut, X, 92.
* Ibn-Hishdm, p. 402 ; Ibn-Sa'd , 1/2, p. 85.
9 For a detailed discussion cf. Sarakhsiy. ^ IV, 320.
4 Halabiy, III, 26 : KarSmat ‘All, Sirah , ch. Hudaibiyah ;
DahlSn Strait, II, 46 ■ ** - .... — •
* AbO-YUsuf, Kharaj, p, 116.
* Sarakhhsiy, ^ , IV, 67.
7 Ibid.
DIPLOMACY
141
national questions and promotion of harmony between
different states. It is immaterial whether the differences
between states are legal or political or otherwise. We are
concerned here only with the modes of their settlement,
which are of various kinds :
1. The first and the simplest kind is mutual negotia-
tion. This is done through permanent or special and extra-
ordinary envoys. This need not be discussed in any detail.
2. Conciliation, mediation and good offices. By these
different terms we understand third parties, friends to both
the contending states, serving as channels for mutual negotia
tion and tendering friendly suggestions and advice to bring
the disputants to an amicable settlement of their relations.
Ibn-Hisham records that in the year 1 H. the first, or at
least one of the first expeditions the Prophet despatched
against the caravans belonging to the city-state of Mecca
— then at war with Islam— was headed by Hamzah, who
encountered the enemy near the seacoast of Yanbu*. Abu-
Jahl was leading the enemy party. A fight was imminent
but MajdIy-ibn-‘Amr, who was an ally of both the states,
Muslim as well as Meccan, intervened with mediations ;
and both the detachments parted from each other quietly. 1
We may also refer to the case of Ubafy-ibn-SalQl, who
although a Muslim Subject, in his capacity as an old
ally of the Jewish tribe of QainuqS*, interceded with the
Prophet on their behalf, and the Prophet granted him his
request.*
3. The third and the most important kind is arbi-
tration. This means the determination of a difference
between two states through the decision of one or more
umpires chosen by the parties o'
.* The most important case in
1 Ibn-Hisham , p. 419. 3 Ibn-Hisham , p. 688; Tabarly, Hist., 1491.
3 See lexicon Taj al-'urus , s.v. tahkim.
142
MUSLIM CONDUCT OF STATE
the time of the Prophet is the arbitration as to the
treatment to be meted out to the Jewish tribes of Banu-
Quraizah after their capitulation on the condition that a
certain person should decide their lot. The Prophet ac-
cepted it, and carried out the arbitral award fully . 1 The
famous arbitration between ‘Ally and Mu‘awiyah is
another classical example, the document containing the
terms of reference in this case having come down to us in
toto} The question was who should succeed to the Caliph
‘Uthman who had been murdered. 'Aliy being elected
by the people of Madinah, and Mu‘awiyah, who was gover-
nor of Syria, contending its validity and himself standing
as a candidate. The arbitrators had agreed among them-
selves that' both ‘Aliy and Mu'awiya should be deposed,
and that the Muslim community should elect a Caliph
anew. Accordingly, at the fixed time and place the
arbitrators came to deliver their award. First the nominee
of ‘Aliy pronounced that he deposed both ‘Aliy and
Mu'awiyah so that a new Caliph might be elected and
the Muslim community once more united. After him stood
the arbitrator nominated by Mu‘awiyah, who said that
the nominee of the other party had no right to decide
except for his own client ; and that he, the nominee of
Mu'Swiyah, however, would not depose his client ; on the
other hand he confirmed him in his position. As the
arbitrators had no agreed award, ‘Aliy did not feel himself
bound by the award and he did not abide by it . 3 Civil
wars would have again ensued had not ‘Aliy been assas-
sinated by an anarchist . 4 In an interesting passage, Abu-
1 Ibn-Hishdm, p. 688-89 : Abu-YOsuf, Khardi, p. 124.
* For text see Jabarly, Hist., I, 3336-38 ; ad-DInawarly,
pp. 196-99 ; or my.
3 Cf. any Islamic History regarding events before 40 H.
4 Abul-Fida\ Hist. I, 364, b &'Sy ,J^5
DIPLOMACY
143
Yusuf says what applies admirably to the case of Aliy :
If the parties agree on two arbitrators .... who differ
in the award, it is void, except when both the parties
agree to accept the award of one of them. If only one
party agrees to the award of one of the arbitrators and
not the other, the arbitration is void. If each of the
parties agrees to the award of one of the arbitrators,
the arbitration is void . 1 *
According to Abfi-Yflsuf, the following categories of
people are not fit to be selected as arbitrators, viz.,
Muslims punished for scandalising respected ladies
minors, women, slaves, blind people, the immoral
men of suspected or notoriously bad conduct
Muslims who are prisoners in the hands of the other
party to arbitration, Muslim traders in the territory
of the other party, Muslim subjects of the other non-
Muslim party, be he in his own home or even in the
Muslim camp.* According to our author an arbitrator
must be :
J-iillj o?.oJI 5 ^J1 J*l J-ii 3 IJob 13 L_rl
- lj>A g V
[A man of insight in affairs, orthodoxy in religion,
eminence and trust among the Muslims, and pro-
found knowledge of law (dtn ?) is preferred and aimed
at in this matter. And those whose evidence is not
accepted in court, should not be selected to arbitrate in
such affairs .] 3
Abu-Yusut also maintains that a non-Muslim subject,
too, is not eligible to the honour of arbitership, but his
opinion has not found favour with other jurists. For
1 Abu-Yusuf, Khar&j p. 124.
* Ibid., x>. 125-26.
• Ibid., p. 125.
144
MUSLIM CONDUCT OF STATE
al-Kasaniy 1 * is explicit that a non-Muslim subject can be
accepted as arbitrator, and the trend of his argument bears
little doubt that, according to him, even neutral non-
Muslims may be accepted as arbiters,
AbG-YGsuf says* that awards to the effect of main-
taining status quo , futile in themselves, are void and are
equivalent to saying : We do not accept arbitership. So,
too, awards for returning Muslims into the subjection of
non-Muslims are void. He is so emphatic on the point
that, according to him, 3 if the other party to the arbitra-
tion had brought to the Muslim camp Muslim prisoners,
slaves of Islamic faith, and Muslim subjects of the other
non-Muslim party, these will not be allowed to return to
the non-Muslim territory, for “the arbitral award does not
allow the return of Muslims to belligerent and infidel
territory,” But his opinion is not shared by other jurists
on the higher authority of the practice of the Prophet who
expressly consented to return Muslims under the treaty of
Hudaiblyah. If for the death of the arbitrators or dis-
agreement between them, an arbitration fails, status quo
must be restored and no undue advantage be taken of
the other party’s sense of security and consequent care-
lessness*
1 VII. 108.
* Ibid., p. 126.
* Khar eh. p. 124.
4 Ibid., p. 124.
PART III
HOSTILE RELATIONS
CHAPTER I
Preliminary Remarks
A TRADITIONAL connection is traced between war
and Islam by interested savants. It will be interesting to
note what Islam has contributed to mitigate the horrors
of war and make it more humane. The Prophet of Islam
is reported to have said : “I am the prophet of mercy, I am
the prophet of battle” (^Ul^ lil HI ). 1 And
again : ‘T am the most valiant yet the most cheerful fighter”
(JUjUI U|). a These two obiter dicta may be taken
as striking the keynote of the whole Muslim law of war.
1 Ibn-Taimiyah, £» s *iJl £^U*J1, p. 8 ; Dhahably, jju£J| £U)&II
I, fol. 40. Cf. Tabariy, Hist. I, 1788, (h yJI ^j; MawLdiy,
iuiUduJI ch. IV : “ 4 .^ }
1 Ibn-Taimiyah, ibid.
CHAPTER II
Various Kinds of Hostile Relations
BEFORE we begin with the laws of war, it is to be
noted that the hostile relations of two or more states do
not always amount to war. More often than not they fall
short of war ; and fighting and bloodshed, or at least, the
mobilisation of the whole of the public forces of a state
does not take place. These relations must be dealt with
first.
1. Reprisals.
These signify a forcible mode of redress by which often
a resort is made to the so-called lex talionis. Such are
the seizure or destruction by one state of the property
belonging to another state or its subjects, the detention of
ambassadors, temporary occupation of the adversary’s
territory, and the like. In this connection the Qur'an lays
down
The forbidden things are reciprocal. So one who
attacketh you, attack him in like manner as he attacked
you and fear God. And know that God is with those
who fear [Him]. (2 : 194).
The guerdon of an ill-deed is an ill the like thereof.
But whoever pardoneth and amendeth, his wage is the
affair of God. Lo ! He loveth not wrong-doers. And
whoso defendeth himself after he hath suffered wrong
—for such, there is no way of blame against them. The
way of blame is only against those who oppress mankind,
148
MUSLIM CONDUCT OF STATE
and wrongfully rebel in the earth. For such there is a
painful doom. (42: 40*42. Cf. 10:28,40:40).
The expedition of Mu’tah 1 was intended for similar
purposes. The plenipotentiaries of the Quraish were de-
tained, after the conclusion of the treaty of Hhidaiblyah, 1 on
the same grounds. In later Islamic history such cases
abound.
2. Pacific Blockade.
This means a blockade of the port or ports of the enemy
and the preventing of all ingress or egress, but no bombard-
ment. This blockade has for object the obtaining of re-
dress. This is a later occurrence, and I could not find
an earlier instance than 1866-68, when the Turks, during
a rebellion, blockaded Crete and thus crushed the insur-
rection. The note of Mustafa Pasha may be referred to in
this connection with profit.*
3. Miscellanea
In modern times, other kinds of hostile activities falling
short of war are to be noted, for instance, the breaking
off of diplomatic relations, postponement of the enforcing
of treaties, economic pressure and a variety of other things.
Further, frontier incidents occurring from time to time,
and skirmishes and clashes between the forces of states
whose tense relations have not yet developed into actual
war must also be classed in this category of relations
1 Tabatly. Hist., I. 1610; Ibn-Hish3m, p. 791££. ; Ibn-Sa'd. 2/1, 92:
Mas'udly, Tanbih, 265. (The expedition of Mu’tah was in fact a reprisal
for the assassination of a Muslim envoy by a GhassSnid chief.)
* Halabfy, Insdn, III, 26 ; Dahl3n, Sirah, II. 46.
* Holland, Studies in International Law, p. 135.
CHAPTER III
Nature and Definition of War
I NEED not enter into any philosophical or historical
discussion of war. It may, however, briefly be noted that
Muslims, too, think of war only as unavoidable, not as
desired or to be sought after. The Qur’Sn says : “And if
they incline to peace, incline thou also to it, and trust
in God.”' And again : “So do not falter, and invite to
peace when ye are the uppermost. And God is with you,
and He will not grudge (the reward of) your actions .” 2 A
Hadith of the Prophet goes : “ Do not be eager to meet
the enemy, but ask God for safety. Yet if you meet them,
persevere and have patience ; and know that Paradise is
under the shadows of swords . 1 ' 3 On another occasion, the
Prophet said : “Do not be eager to meet the enemy,
perhaps you may be put to test by them, but rather say :
O God ! Suffice for us, and keep their might away from
us r 4
A later Muslim author strikes an interesting note by
saying :
^A«a)l bia, >L»a,VJ
. *sVaJI liisu JU&VU jit J>jJ\ 3 dUwUuJI
1 Qur’an. 8:61. * Qur’an, 47 : 35.
» Bukhariy, 56 : 112, 156 ; 94 : 8. Sahih of Muslim, V. 143. AbU Dawud.
15 : 89. Darimly, 17 : 6, Ibn-Hanbal, IX. 400, 523 ; IV, 353.
* Ibn-Qutaibah, ’ Uyunul-Afshffir , 1, 107 (ch. Kitab al-Harb).
150
MUSLIM CONDUCT OF STATE
Wars are accidents among the happenings of the
time, just like sicknesses, in contrast to peace and
security, which resemble health for bodies. So it is
necessary to preserve health by means of political action,
and to shun sickness by means of warlike action, and to
busy one’s self in preserving health. 1 * *
Definition of War.
An old Muslim jurisconsult, al-Klsaniy, defines jihad, or
the war of the Muslims, thus : Jihad in the technology of
law is used for expending ability and power in fighting in the
path of God by means of life, property, tongue and other than
these.” 9 The same thing is repeated in different words by
practically all the later Muslim writers on Muslim law, but
no one mentions in the definition who it is who will
undertake a war : the public or the government ? In-
cidentally, the question is answered in the course of other
discussion. So the fact that the jihad is not considered
as a personal duty j» yi) to be observed by each
and every individual (cf . V the Qur’an, 9 : 122),
but only a general duty (ajUU Jp y ») which, if ac-
complished by a sufficient number, the rest will no more
be charged with the neglect of that duty,— this fact
renders the administration of jihad entirely in the hands
of the Government. The practice of the Prophet also shows
that either he himself organised the expeditions or dele*
gated its authority to responsible governors or tribal
chieftains. (Cf. Ibn-Hishdm, p. 954.) As for jurists, Ahu-
Yusuf, the Chief Qadi of Harun-ar-Rashid, says : No
army marches without permission of the Caliph
1 Hasan-ibn-- Abdallah. A J,V1 ,1ft (compiled 708 H.),
167. ‘ " y
* VII, 97.
NATURE AND DEFINITION OF WAR
151
cP* jh*i Al-Mawardly is also clear about
it that a war cannot be waged without permission of the
Caliph (central government) 2 Defence of foreign aggres-
sion must naturally be excepted. As-Sarakhsiy, comment-
ing on ash-Shaibgniy, goes even so far as to maintain
that if a foreign armed force without permission of its
government takes belligerent action against a Muslim State,
that does not amount to a declaration or existence of
war between the two states. 3 In such cases redress may
be obtained by diplomatic negotiations and even by direct
methods as the occasion may require.
As all the acts of life of a Muslim are controlled by
the Qur’an, so everything he does with the intention
of obeying his Lord are acts religiously held to be merit-
orious, even his eating and drinking — in order to preserve
strength for performing his duties to God — or taking part
in a war — in order to establish on earth the Kingdom
of God Without appreciating this background, it will
not be easy to understand why even wars of expansion
are to be considered as acts in the path of God. In a
verse of the Qur’an, often referred to, it is stated : —
Lo ! God hath bought from the believers their lives
and their wealth because Paradise will be theirs : they
shall fight in the path of God and shall slay and be
slain. It is a promise which is binding on Him in the
Torah and the Gospel and the Qur’an, and whoful-
filleth his covenant better than God ? Rejoice then
in your bargain that ye have made, for that is the
supreme triumph. (9 : 111).
» e yj, P-123.
* ffcUOrt , p. 53.
» \ ^juJI cr S>, IV, 226. Cf. KSsSnly, o, VII. 109-10. Ibn-
Farishtah, ch. Jihad (my private manuscript).
LU ch- Jihad, pp. 221-22.
152
MUSLIM CONDUCT OF STATE
These and scores of other verses and Traditions of
the Prophet render military service an obligatory duty of
every Muslim. Ordinarily women and slaves are exempt,
but if the rest of the man-power proves insufficient,
even these are liable to active military service. 1 Regarding
training and preparations in time of peace we read again in
the Qur’an :
And make ready for them all ye can of armed force
and of horses tethered, that ye may dismay the enemy
of God and your enemy and others beside them whom
ye know not: God knoweth them. And whatsoever
ye spend in the path of God, it will be repaid to you
in full, and ye will not be wronged. And if they
incline to peace, incline thou also to it, and trust in
God. Lo ! He is the Hearer, the Knower. (8 : 60-61).
* Fatdm Titar Khdnivah. (my priv. MS.), ch. Jihad ; etc.
CHAPTER IV
Lawful Wars
THE lawful reasons for Muslims to wage war may fall
into the following categories :
>
1. The Continuation of an Existing War.
By this we mean the recommencement of a war which
has been stopped for some reason or other. The exhaus-
tion of both the parties or separation of them without
any treaty of peace, 1 the suspension of warlike activities
by mutual agreement for fixed period* and such other
instances may be examoles thereof. The Qur’an lays down
in this connection : “And when the months of immunity
on account of the treaty of peace] have passed, slay
the Associators wherever ye find them, and take them
(captive) and besiege them, and prepare for them each
ambush." 3 Commenting on this verse, Sarakhsly says : —
And when the months of immunity have passed, slay
the Associators wherever ye find them. And the mean*
ing of the Qur’anic expression : “ When the months of
immunity have passed " is that when the period of the
truce with someone has ended*
1 Almost all the wars of the Prophet with the Meccans were of this
kind.
* The peace treaty of Hudaibiyah provided for cessation of hostilities
for ten years.
* Qur’3n, 9 : 5 .
4 c jA, I. 688 : ^ *,YS iMi ’* JUS > %
. J ^gjJl iuxx “f! ,1\
154
MUSLIM CONDUCT OF STATE
2. Defensive.
This can be either when the enemy (a) has invaded
Muslim territory, or (b) has not actually so invaded, but
has behaved in an unbearable manner. The former needs
no elaborate discussion. The Qur’an lays down : “Fight
in the path of God against those who fight against you, but
do not transgress. Lo ! God loveth not transgressors.” 1 *
Regarding the high-handed behaviour of a foreign country,
an interesting quotation will explain Muslim law on the
point : —
Sanction is given unto those who are fought against
because they have been wronged ; and God is indeed
Able to give them victory.*
— This referred to the Prophet and other Muslims who
had taken refuge in Madinah and were still being harassed
by the Meccans in many ways. They addressed, for in-
stance, an ultimatum to a Madinite magnate, ‘AbdullSh-
ibn-Ubaxy. either to fight and kill or expel the Prophet,
or they would attack Madinah. 3 Many traditions bear
witness to the fact that in the early days after the
migration of the Prophet, the Muslim community of
Madinah lived such a precarious life that they used to
sleep in full war-kit. 4 * Another instance is provided by
the expedition against Dumatuljandal in the year 5 H.,
where the local chieftain, Ukaidir, was molesting the
caravans coming from the north to Madinah.* The attack
on Khaibar is an instance of nipping war in the bud. 6
1 Qur’an. 2 : 190. * Qur’an, 22:39.
* Sunan of Nas’iy, II, 67, ch. Khabar Bani-an-Nadir.
4 Bukhativ. Nasa’iy, Hakim, Darimly, etc., quoted by Shibll.
O.jux 2nd ed. I, 285-86.
6 Mas’ndly, Tanbih , 248.
• Ibn-Sa'd, 2/1, 66. 47. Tabarly, Hist., 1, 1556, 1575-76. Mas’udFy, Tanbih.
250, Sarakhsly, Mabsut, X, 86.
LAWFUL WARS
155
We may also refer here to the verse of the Qur’an
(9: 12): “Will ye not fight a folk who broke their
solemn pledges, and purposed to drive out the Messenger,
and did (attack) you first ?” Further, an important and
interesting saying of the Prophet enumerates the kinds
of defensive wars, and says : “Whoever fights in defence
of his person and is killed, he is a martyr ;
whoever is killed in defence of his property, is a martyr ;
whoever fights in defence of his family and is killed, is
a martyr ; and whoever is killed for the cause of oGd,
is a martyr.” ( Cf . Suyutiy’s alphabetical dictionary of
traditions, 5»r, vol. 4, s.v. "ex*", on the authority
of ‘Abd-ar-Razzaq and others.)
3. Sympathetic.
By this we mean that were the Muslims of a foreign
denomination to seek the help of the Muslim State against
their (non-Muslim) government, help might be given them.
The Qur’an lays down in this connection that each case
must be decided on its own merits : —
(a) And those who believe but have not left their
homes, ye have no duty to protect till they leave their
homes ; but if they seek help from you in the matter
of religion, then it is your duty to help (them) except
against a folk between whom and you there is a treaty.
God is Seer of what ye do. (8 : 72).
(fc) How should ye not fight for the cause of God
and of the feeble among men and of the women and
the children who are crying : Our Lord ! Bring tis
forth out from this town of which the people are
oppressors ! Oh, give us from Thy Presence some pro-
tecting friend ! Oh, give us from Thy Presence some
defender ! Those who believe do battle for the cause
of God ; and those who disbelieve do battle for the
156
MUSLIM CONDUCT OF STATE
cause of the Devil. (4 : 75-76).
4. Punitive.
The following causes constitute lawful reasons for wag-
ing war, viz., hypocrisy, 1 apostasy, 3 insisting on the non-
binding character of zakat or any other religious duty, 9
rebellion, 4 * breaking of a covenant by the other party, 9
becoming a Khariiite. because such people say that the
generality of the Muslim community is hypocritical and
take arms against the established government. 6 *
5. Idealistic.
Every nation has its own ideals which constantly inspire
it. The deeper a nation is convinced of them, the greater
is its effort to, realise them. As we have seen above,
the Islamic conception of life is based on the Unity of
God and the vicegerency of man on earth. This implies
that all the Faithful are equal, irrespective of race and
clime, and also that the Word of God should rule supreme
in the world. It is this mission to uproot godlessness and
association with God in His Divinity that is referred to
in Islamic literature by the expression : “ In the Path of God
which we have translated as “Idealistic” reasons
for waging war. Of the scores of Qur’anic verses in this
connection, a few may be quoted : —
* Qur’an, 66:9.
* See infra, in a separate chapter.
* The Caliph AbU-Bakr fought against them. There are alfadith to
support that, e.g„ al-Baihaqly in Sunan al-Kubrd, Vol. 7. ch. JUS
*>j}\ J.»l records : ^UJl JjKI 0 1 Cjf\
IMi \yiyi .s^JI y A&1 Jy~,j y <&\ Vi AJ1 V 0 \
4 Qur’an, 49 : 9. Cf. also infra, separate chapter.
* Qur’an, 9 : 12. Cf. Sarakhsiy, ,ju5J| 65.
* The Caliph ’Aliy fought against them, for whose interpretation of a
tradition of the Prophet in his support cf. Sarakhsiy. X, 124.
LAWFUL WARS
. 157
(a) He it is Who hath sent His Messenger (i.e.
Muhammad) with the Guidance and the Religion of
Truth that He may cause it to prevail over all religions,
however much the associators may be averse. (9 : 33
repeated in 48 : 28, 61 : 9).
( b ) Ye (i.e., the Muslims) are the best community
that hath been raised up for mankind. Ye enjoin right
conduct and forbid indecency, and ye believe in God.
(3 : 110).
The same selfless Divine mission is most vividly described
in an oft-quoted saying of the Prophet
Whoever from among you sees an indecency, he must
change it by his hand ; if he cannot, he must do so by his
tongue ; if he cannot, he must do so by his heart (through
disapproval, etc.) but this last would testify to the ex-
treme weakness of Faith. 1
Islam has recognised a certain amount of latitude in
personal judgment, and hence the sharp distinction between
the Islamic rule and the Islamic faith. No one is to be
forced to embrace the Islamic faith, as we shall see pre-
sently, yet Islamic rule is to be established by all means.
It was this basic distinction that non-Muslims are tolerated
in an Islamic polity as inhabitants, as we have seen in
Part II, Chapter IV, (fe).
Regarding freedom of conscience we read in the
Qur’an : —
(а) There is no compulsion in religion. The right
direction has become distinct from error. (2 : 256).
(б) Unto you your religion and unto me my religion.
(109:6;.
1 Sahih of Muslim, I, 50.
158
MUSLIM CONDUCT OF STATE
(c) And strive for God with the endeavour which is
His right. He hath chosen you, and hath not laid
upon you in religion any hardship ; . the faith of your
father Abraham (is yours). He hath named you Muslims
of old time and (also) in this (scripture, t.e., Qur’an)
that the Messenger may be a witness against you,
and that ye may be witnesses against mankind. So
establish worship, pay the Zak§t-tax, and hold fast
to God. He is your Protecting Friend, and what a
blessed Friend and a blessed Helper ! (22 : 78).
And similar other verses.
It is with this background that we ought to read the
Fiqh books which expose Muslim law of war. They
say When a Muslim state is free from internal
commotion and strife, and has sufficient power to hope
for victory in case of resistance, then it is its duty to
invite the neighbouring* non-Muslim sovereigns to accept
the unity of God as an article of faith and to believe
in Muhammad as the Messenger of God, in short to em-
brace Islam. If they do, they will retain their power
and will secure themselves against hostility on the part
of the Muslim state. If the invitation is rejected, the
non-Muslim chief within the Arabian Peninsula has no other
choice but to face the sword. If, however, his territory is
outside Arabia, the alternative is to pay yearly jizyah or
the protection-tax, which will secure his territory against
Muslim attack. If both these alternatives are rejected and
all peaceful persuasion and reasoning fail, then it is the duty
of the Muslim state to declare war in the name of God until
it conquers or receives the jizyah , or has the gratification
1 Cf. any compendium of Muslim law, ch. War ( Mabsut , Vol. 10,
Bad&'i ‘ of K5s3nly, Vol. 7, MSwardly and Abu-Ya‘la’s Ahkamas-Sultdmyah ,
Shafi'iy's 17mm, Vol. 4, Sarakhsiy's Shark as-siyar aUhablr, Vols. 1-4.
* Cf. Qur'an, 9 s 123 jJl).
LAWFUL WARS
159
to know that the other party has at last embraced Islam.
In subsequent chapters we shall see what are the
actual laws which Islam has prescribed for the conduct
of war regarding different kinds of enemies.
CHAPTER V
Enemy Persons
ENEMY persons, according to how they are treated,
are of four kinds, viz., apostates, rebels, highwaymen and
pirates, and non-Muslim belligerents in general. The
first three kinds are generally the subjects of the Muslim
state and the last one consists of foreigners.
We shall deal with them seriatim. But it is to be
noted from the very beginning that apostates, rebels and
highwaymen come under international law only when
they are of sufficient power or have acquired territory
and rule over it . 1 Otherwise they belong to the ordinar
criminal law of the land, and the treatment meted out to
them has no relation to our subject.
1 Mawardly, al-Ahk&m as-Sultdnlyah, pp. 90, 92, 96.
CHAPTER VI
Apostasy
TO wage war against apostates is justified on the same
principle as that on which the punishment of a solitary
apostate is based. The basis of Muslim polity being reli-
gious and not ethnological or linguistic, it is not difficult
to appreciate the reason for penalising this act of apostasy.
For it constitutes a politico-religious rebellion.
Apostasy in Muslim law means turning from Islam
after being a Muslim. Not only does it occur when
a person declares his conversion to some non-Islamic
religion, but also when he refuses to believe in any and
every article of the Islamic faith. 1 *
The sayings* and the doings 5 of the Prophet, the deci-
sion and practice of the Caliph Abu-Bakr, 4 the consensus
of the opinion of the Companions of the Prophet and
all the later Muslim jurisconsults, 4 and even certain indirect
verses of the Qur'an, 3 all prescribe capital punishment for
an apostate. In the case of apostasy, no distinction is
made between a Muslim born of Muslim parents and a
convert ; and similarly there is no difference between accept-
ing Judaism or Christianity, atheism or idol-worship or any
other non-Islamic faith. Nevertheless, Muslim jurists em-
1 MSwardiy, p. 89 ; ch.
* Sarakhsxv. Mabsut, X, 98.
* Mawardiy, p. 90, Tabarly, Hist., 1, 1639 ff.
* Kasaniy, Bada'i', VII, 134.
* Qur’an, 33 : 57, 5 : 5$.
162
MUSLIM CONDUCT OF STATE
phasise that before prosecuting and condemning an apostate,
it is necessary officially to discuss the matter with him and
to remove his doubts regarding the soundness and reason-
ableness of the Islamic point of view in the matter
concerned. Time is given him for reflection 1 * sometimes even
for months* before finally proceeding with the prosecution.
In case an insane person, 3 a delirious, a melancholy and
perplexed man, 3 a minor, 3 one intoxicated, 3-4 one who had
declared his faith in Islam under coercion, 4 and a person
whose faith in Islam has not been known or established 3 *
were to become apostate they would not suffer the
supreme penalty. So, too, an apostate woman, 3 ”® and a
hermaphrodite, 3 according to the Hanafiy school of law
would not be condemned to death, but imprisoned and
even physically tortured. An old man from whom no off-
spring is expected is also excepted. 7 8
Treatment of an Apostate.
The apostate has to choose between Islam and the
sword : he cannot be given quarter nor will he be
allowed to become a dhimmty, i.e., a resident non-Muslim
subject of the Muslim state on payment of the yearly pro-
tection tax.®
De jure he is dead So if he does not re-embrace Islam,
and escapes to some non-Muslim territory, his property in
the Islamic territory will be distributed among his Muslim
1 Sarakhsly, Mabsut , X, 98-99.
* Abu- Yusuf, Khardi . p. 110.
8 Kasanly, Badai\ VII, 134.
4 Sarakhsly, Mabsut , X, 123.
5 Ibn-*AbidIn, Raddul- Muhtar, III, 326-7.
• Abn- Yusuf, Khardi . p. 111, SaraWisIy. Sharh al-usul t ch.
(I have consulted MS. No. 1838, Bayazld, Istanbul)*
7 Ibn- Abidin, Raddul- Muhtdr , III, 246.
8 Sarakhsly Mabsut , X, 116,
APOSTASY
163
heirs 1 as if he were dead. In addition to this, the debts
due to him will be wiped out if he has reached non-Muslim
territory. This is what MSwardly says, 2 but I wonder why
these debts should not be inherited by the heirs of the
renegade just like the rest of his property ?
Distinction between the Territory of Apostates and the Terri-
tory of ordinary non-Muslims.
Mawardly writes that there are five characteristics in
the territory of apostates (ihjJl^b) which distinguish it from
the territory of ordinary non-Muslims ( y&Jl ^b) namely : s
1. A treaty of peace or alliance is not ordinarily
allowed with apostates ; no such restriction exists in relation
to ordinary non-Muslim foreigners.
2. An apostate is not allowed to become a dhimmty
(non-Muslim subject of the Muslim state) ; not so an
original non-Muslim.
3. As an apostate has nothing to choose but the re-
embracing of Islam or the sword, he cannot be enslaved
and so let live.
4. The booty acquired from an apostate is not to
be distributed among the capturing troop ; it will go to
the general exchequer. The different kinds of property
captured from an ordinary non-Muslim belligerent will be
treated in a subsequent chapter. It is to be noted,
however, that property of dead apostates, captured dur-
ing a conflict, at once becomes the property of the
Muslim state ; but if living, his property is to be held in
trust to be returned to him on re-embracing Islam or
finally to be confiscated at his death.
1 Ibn-' Abidin, Raddul- Muhtar. Ill, 328-9 ; Sarakhslv. Mabsut, X, 100.
* Al-Ahkdm as-Sultdntyah, in loco.
* Mawardly, Al-Ahkdm as-Sultdmyah. p. 94.
164
MUSLIM CONDUCT OF STATE
5. Apostates made prisoners, if they do not re-embrace
Islam, will in due course be beheaded — no quarter may
be given them as is the case regarding ordinary belligerent
prisoners.
So far the differences : yet there are also certain
similarities between the treatment 1 of apostates and that
of non-Muslim belligerents. So an apostate is not held
responsible for the destruction ’of Muslim life and pro-
perty during the war, upon his return to Islam. This
was actually decided in the time of the first Caliph,
and of course his precedent could not be contested.
Further, in being fought and pursued, the apostates are
the same as other non-Muslim enemy combatants. Their
ambassadors, too, will receive the same rights and im-
munities. So, during the life of the Prophet, the am-
bassadors of Musailimah the Impostor, came to Madinah ;
and, on being asked, replied that they too held the notions
of him who sent them. At this the Prophet said : “ But
for the fact that ambassadors cannot be killed, by God,
I would have ordered you both to be beheaded.” 2 (They
were Muslim subjects who had apostatised). Moreover,
an apostate cannot inherit from his Muslim relatives.
1 Generally for their treatment, Tabariy, Hist., year 11 H. ; Kitab-ar-
riddah of WSqidiy, MS. of Bankipur ; MabsVt of Sarakhsly. X, 98-124.
* Ibn-Higham, 965.
CHAPTER VII
> Civil Wars and Rebellions
FROM the pre-Islamic point of view, this chapter
alone would represent Muslim International Law, that is,
public law between Muslim states ; for here is described
the treatment reserved for an equally civilised enemy.
But Muslim law is based on the conception of the unity
of Islam, and no wonder, therefore, that scarcely any
provision has been made, in the positive law of Islam, re-
garding this kind of war. In the whole of the Qur’an I
found only one verse which deals with the subject
And if two parties of Believers fall to fighting, then
make peace between them. And if one party pf them
doth wrong to the other, fight ye that which doth wrong
till it return unto the ordinance of God ; then, if it
return, make peace between them justly, and act equit-
ably. Lo ! God loveth the equitable. (49 : 9).
And this solitary command is immediately followed
by
The believers are naught else than brothers. There-
fore make peace between your brethren and observe
your duty to God that haply ye may obtain mercy.
(49 : 10).
In the traditions of the Prophet also there are only a
few sayings in general terms which do not help in con-
structing a whole system. We shall refer to these presently.
The Muslim law of rebellion, as exposed in legal compendia,
is generally based on the Orthodox Practice of the Caliph
166
MUSLIM CONDUCT OF STATE
'Ally though it must be admitted that no later Muslim
ruler reached the sublime height of idealism evinced by the
pious son-in-law of the Prophet
(a) Various Kinds of Opposition.
According to the degree and nature of opposition to an
established government, the following classification is
humbly submitted : —
1. Religious grounds — the Khariiism.
2. Political or worldly reasons :
i. Insurrection.
it. Mutiny.
tit. War of Deliverance.
iv> Rebellion.
v. Civil War.
1. Opposition on religious grounds.
So far as I know, only one instance is recorded by
Muslim history of religious dissentients who were able to
resist the whole government forces for any length of time.
This refers to the Kharijites (literally the dissentients ) who
believed in a sort of anarchy, and accused all the rest of
the Muslims of heresy and even disbelief. If they do
not oppose any armed resistance to the established govern-
ment, they are tolerated more or less in the same way as
any other unorthodox sect. 1 If they are no longer passive
and try to disestablish and replace the actual government
they will be treated just like political rebels. No special
privileges are attached to religious rebellion as distinguished
from political rebellions.
1 Sarakhsiv. Mabsut , X, 125 ; MSwardiy, p. 96. Muwaffaq records (in
his s-*SU*, II, 21) a case of written truce with the'
Khariiites.
CIVIL WARS AND REBELLIONS
167
2. Opposition to the government on political and worldly
grounds.
(»') If it is directed against certain acts of government
officials, and no revolution is intended, we may call it
insurrection. Their punishment belongs to the law of the
land. International law does not take notice of them.
(it) If the insurrection is intended to overthrow the
legally established government on unjustifiable grounds, we
call it mutiny. 1
(tit) On the other hand, if the insurrection is directed
against a government established illegally, or which has
become illegal for its tyranny, we may term the agitation
a war of deliverance , no matter whether the government
under which the Muslim community is toiling is Muslim or
non-Muslim.
(tv) If the insurgents grow more powerful to the extent
of occupying some territory and controlling it in defiance of
the home government, we have a case of rebellion. The
reluctance of some tribes, after the death of the Prophet, to
pay government taxes was considered a rebellious act, and
instructions were issued by the Caliph Abu-Bakr to subjugate
them by force of arms. These people had not abjured
Islam ; only they did not feel themselves bound to pay taxes
to the central government.
(v) If the rebellion grows to the proportion of a govern-
ment equal to the mother government, and hostilities
continue, we may term it a civil war. There is no difference
whether a rebel pretender has acquired power and successes,
or, at the death or deposition of a head of the state, two
claimants have sprung up and the sympathies of the people
are divided. The wars between ‘Ally and Mu'awiyah may
be cited as an instance. Mu awiyah had theoretically not ,
1 For further discussion cf. , Hyderabad, Oct. 1940,
pp. 11-12.
168
MUSLIM CONDUCT OF STATE
rebelled against ‘Ally since he had not taken the oath of
'Aliy's allegiance but opposed him ever since the murder of
the third Caliph, ‘UthtnSn.
(6) Treatment of Rebels , etc.
According to al-M3wardiy, the punishment of rebels, in
Muslim law, is not capital 1 — they may be killed only on the
battlefield, at the time of combat. 1 Generally this is true,
but it cannot be taken strictly. For as-Sarakhsiv is explicit 1 *
that on certain occasions, as for example when the rebellion
is not yet completely subdued, the rebel prisoners may be
beheaded. Of course, this refers only to the case when the
rebel remains obstinate, and his repentance is not established.
One should warn the rebels of the consequences of their
persistence, and one should excuse oneself before beginning
battle. 4 According to Mawardly, 5 * night assaults and attacks
without warning or notice are to be avoided in order to
diminish Muslim bloodshed. But in the actual fight, rebels
are treated in the same manner as non-Muslim belligerents.
Even if a loyal subject who is, somehow or other, in the
ranks of the rebels, be killed by the Muslim troops, the
latter cannot be held responsible.
The aim of a fight with rebels is to prevent them from
disturbing peace and order, not to kill them and exterminate
them. 7
They may be pursued and killed only when they have a
stronghold wherein to take refuge and prepare for further
1 Al-Ahkam as-Sultdniyah , p. 97.
4 Idem, p. 100.
4 Mabsut, X. 126.
4 Mawardly, op. cit., p. 98. 0 !»>■•>! 3
* Ibid.
* Ash-Skaibaniy, Kitdb al-Asl , ch. 5 , (MS. Aya
Sofia. No. 1076).
7 Mawardly, op. cit., p. 98.
CIVIL WARS AND REBELLIONS
169
fight . 1 *
A rebel, unlike an apostate, may be given a quarter . 3 4 5
The judgment of a court in a rebel state will be regard-
ed as lawful and valid, and will not be upset when that
country is subdued, unless it is proved that a certain decision
has been contrary to Muslim law and no school of orthodox
Muslims upheld it . 3
If a subject of the Muslim state, whether prisoner, trader
or otherwise, commits a crime in rebel territory, no suit
may be brought against him in the court of the Muslim
territory, not even at the reconquest by the Muslim state
of the place where the criminal act was committed.*
For the jurisdiction of the loyal court did not extend to
that place at the time.
As we shall see in the chapter on Quarter even the
lowest of the Muslims, a slave even, can validly give
quarter to a belligerent, and the quarter accorded by rebels
to non-Muslims or even a treaty of friendship concluded
with them is considered binding on the Muslim state
which cannot molest them . 3 Nevertheless the classical
jurists know the subtle difference between quarter and a
treaty of amity and an alliance to fight against the Muslim
state. So as-Sarakhsiv says :
If the rebels asked for the help of some non-Muslim
state in order to fight against the Muslim state, and they
did fight, and finally the Muslim state defeated them,
they could be enslaved (like ordinary non-Muslim bellige-
rents). For the asking of help by the rebels is not like
giving quarter, since the recipient of quarter enters the
1 Ash-Shaib5niv r op. cit. % in the same place ; cf. Mas'udiy, Muruj , IV,
316 for the sayings of the Caliph ‘Ally.
8 Sarakhsiy, Mabsut , X, 129.
8 Idem, pp. 130, 135.
4 Mabsut of Saraihsiy, X, 130.
5 Mabsut of as- Sarafchsly, X, 133.
170
MUSLIM CONDUCT OF STATE
Muslim territory for pacific purposes, whereas these did
not enter Muslim territory except to fight loyal Muslim
subjects . 1 *
(c) Belligerent Rights of Rebels.
Rights of full belligerency are conceded by Muslim law
to rebels. As we have just seen, the judgment of their
court is ordinarily not reversed after their submission.
Similarly, if they collect revenue or other taxes, the people
will be released from their obligation, and upon reconquest,
the Muslim state may not exact the same taxes again.* So,
too, if a merchant enters the rebel territory and pays
customs duties, he will have to pay again on the border
of the loyal Muslim territory , 3 as if the rebel state were a
foreign state. That they may conclude treaties with foreign
state has already been mentioned in the previous section
and their effects too have been described. Moreover, for
wrongs committed in rebel territory, the culprits cannot be
tried in the court of the loyal Muslim territory . 4 *
The mutual loss to life and property caused during a
conflict is to be left without exacting punishment, and no
retaliation or damages may be assessed even when the
culprits are identified . 3 This immunity accrues to them on
account of their being a de facto state ; otherwise if a band
of robbers were to attack and plunder a city, their acts are
not treated with impunity . 6 Although AbQ-Yusuf records
the opinion of some jurists to the contrary, he is definite that
only the war material captured from rebels ought to be
treated as war booty and cannot be returned to the relatives
1 Mabsut of Sarakhsly, X. 136.
a Sarakhsly and others in loco.
9 Mawardiy, op. cit. % p. 101.
4 Sarakhsly. Mabsut , X, 130.
# Idem , pp. 127-28, quoting a precedent of the Caliph Abu-Bakr.
• Idem , p. 135.
CIVIL WARS AND REBELLIONS
171
of the rebels ;* other property ought to return to rightful
owners or their heirs as was ‘Ally's practice . 1 * *
The subdued rebels are, however, ordered by Muslim
law to return to the rightful owner what they still ac-
tually possess of the property captured from loyal Muslim
subjects . 5
(d) Special Privileges of Rebels.
Unlike a non-Muslim state, no tribute can be taken
from rebels if, for some reason or other, the Muslim state
is willing to make peace with them. And if at all anything
is taken, it must be ascertained whether it was private
property of rebels or the property of the state, collected or
captured by them : if it is government property, then the
Muslim state may expend it for purposes for which it was
intended ; and if it is the private property of the rebels, then
the Muslim state has no right to appropriate it, but must
return it. sooner or later, to its rightful owners . 4
Save in defence, weapons unnecessarily destructive are
not to be used against the rebels . 5
Regarding a rebel force, ‘Aliy is reported to have
ordered :
Yj 1 Yj 131
o J>t , \yu£Si3 Yj Y*
AJjOAJ - to Yi lyiyij
»«U3 L* j * X<«1 «l iXa* jl jS ^1 jgn ji * » «»
- <uil Cjl >S U* yi y^»
1 Kitab al-Kharai. p. 132.
* Ibid., also. cf. Muruj of Mas'udiy, IV, Dinawariy, p. 213.
* Ibid.
4 MSwardiy, op. cit., 100.
* Ibid.
172
MUSLIM CONDUCT OF STATE
When you defeat them, do not kill their wounded, do
not behead the prisoners, do not pursue those who return
and retreat, do not enslave their women, do not muti-
late their dead, do not uncover what is to remain
covered, do not approach their property except what
you find in their camp of weapons, beasts, male or
female slaves : all the rest is to be inherited by their
heirs according to the Writ of God. 1 *
One of 'Aliy’s commanders wrote in a despatch :
LI* JJuu cj*
Uti JOU W y* V dJ\ Alii viUl j^-1 <yl»
5* j * j \ 3 iU ,JJu> '^klU ILJt* .X —5 ^
, m lj tfSil k 1) j>a.} iXi ^ js*. j^ix uiijj jJj l^i»l
To the Servant of God, ‘Aliy, Commander of the
Faithful, from Ma’qil-ibn-Qais : Salutation and Praise
to God ! We encountered the dissentients who had
sought help against us from the Associators. We killed
them like the Amalekites* yet we did not trans-
gress thy conduct : we did not kill the retreating dis-
sentients, nor the prisoners, nor killed the wounded
among them. God has given victory to thee and the
Muslims. Praise unto the Lord of all the Worlds. 3 4
Their dead are to be buried.* Their prisoners are gen-
1 Muruj . of Mas'udly, IV, 316-17 ;
^ ^ ^
(d 653 H.), fol. 86 a (MS. Cairo, hist. No. 399 .
9 “ Amalckitc M is a graphic translation. Allusion to a saying of the
Prophet recorded both by Bukharly and Muslim, and quoted by Ibn
Taimiyah. as-Sivasah ash-Shar'ivah. pp. 25,60: ^^5^- * - ^5
>U_JxS M c ^iJ - - - - C!*
* Yusuf al-Andalusiy, op. cit., fol. 126., Tabarly, Hist., anno. 38.
4 Shaibsniy, ch. ^L-J\ J*» j jtyU
CIVIL WARS AND REBELLIONS
173
erally not to be beheaded, and if they convincingly
promise to behave in future like loyal and law-abiding
subjects, they ought even to be immediately released . 1 * No
ransom may be demanded for the release of prisoners . 3
Rebel prisoners, Muslims or non-Muslims, may never be
enslaved . 1 The army of ‘Ally clamoured for the enslave-
ment of their prisoners, and “Aliy bluntly reminded them : 4
Well, then who will take ‘A’ishah, the wife of the Prophet
and Mother of the Faithful ?” — She was the leader of an
army against ‘Ally, and at the time was under his guards.
The servants and followers of their camp may only be
killed in battle if they take part in actual combat.
As the killing of a Muslim by the hands of a non-Muslim
is religiously not allowed, it is inadvisable to enlist non-
Muslims in a campaign against Muslim rebels.
A woman rebel may only be killed in defence.
0 ixS lM,i»
(e) Miscellanea.
If the rebels attack a country friendly to the Muslim
state, and acquire booty which is afterwards captured by
the loyal troops from the hands of the rebels, it must be
returned to the original owners . 5 The loyal subjects of the
Muslim state in the rebel territory may join forces with the
rebels against a non-Muslim foreign attack . 6 7 If the rebels
co-operate with the loyal troop in a fight against a common
enemy, they share in the booty with the loyal troop.*
1 Mawardiy, op. cit., p. 99.
* Shaibanlv. op. cit., etc.
* Satakhsiv. Mabsut, X, 127.
* .Ibid.
6 Shaibaniy. t ch. ibid.
* Sarakhsly. Mabsut. X, 98, 133-34.
7 Idem, p. 130.
* Sarakhsly. Mabsut, X, p. 130.
174
MUSLIM CONDUCT OF STATE
Although the non-Muslim soldiers of the Muslim army
ordinarily do not share in the war-booty along with Muslim
soldiers, but are given only a prize approximate to their
labours, ash-ShaibSniy, in a stray passage, opines that
if they form in themselves a strong force sufficient to act
independently, or the Muslim army is not strong enough
without them, then they also share the booty in common . 1 2 3 4
If hostages are exchanged, and the rebels murder the
loyal hostages, the rebel hostages may not be punished
even when that had been agreed upon, for the guilt is
not theirs personally but of their government.* The
captured property of rebels which cannot be made booty,
may yet be sold for convenience’s sake, and the proceeds
returned to rightful owners at the cessation of hostilities.*
if) Deposition of the Muslim Ruler.
A passing reference may be made in this connexion to
the possibility of deposition of a Muslim ruler by the
pillars of the State if he has become unbearably tyrannical
or otherwise incapable of discharging his duties, e.g.,
because of insanity, capture by an enemy, etc. (cf. k. al
imarah in any law-book).
In general, Muslims are exhorted in the Qur’an* and in
the Hadith 5 6 * always to obey the authorities. In an oft-quoted
tradition , 8 the Prophet has observed : “ Everyone of you is a
1 ShaibSniy. op. cit.
2 Sarakhsiy, Mabsut , X, 129, quoting Qur'an, 6 : 164, also decision of
Abti-Hanifah acquiesced in by Caliph Mansur, regarding hostages of a
non-Muslim state, applying pre-eminently to Muslim rebels.
3 Sarakhsiv and others in loco.
4 4 : 59. Cf. my “ Quranic Conception of State, ” in The Quranic Wotld,
Hyderabad, April 1936.
5 Tabwib of ‘Aliy al-Muttaqiy (my private MS.), ch. Kitab al-umara*.
6 ‘Aliy al-Muttaqiy quoting in his Tabwib on the authority of Bukhariv.
Muslim, AbG-Dawud, Trimidhiy, Ibn Hanbal, TabarSnly and others.
CIVIL WARS AND REBELLIONS
175
shepherd and everyone of you is responsible for those under
his care. So the ruler is a shepherd and is responsible for
his subjects ; a man is a shepherd and is responsible for his
family; a woman is a shepherdess and is responsible for the
house of her husband; a servant is a shepherd and is respond
ible for the property of his master ; a boy is a shepherd
and is responsible for the property of his father — in fact
everyone of you is a shepherd and is responsible for those
in his care." 1 Yet this responsibility is before God in
the next world. People are exhorted to obey even tyrants ;
and in a characteristic tradition, the Prophet is reported
to have said : “ If the ruler is just, he will get his reward
and you ought to be grateful ; if the ruler is a tyrant,
he will get his punishment and you ought to have
patience.” 8 No wonder that in spite of all this the Prophet
has unequivocally said : “ No obedience to any creature
in disobedience to the Creator.” 8 It is quite in harmony
with the fundamental principle of the Muslim polity that
God is the real Sovereign of the world, and that man is only
His vicegerent. (.Cf. also part 2, ch. 3).
(g) Non-Muslim Rebels.
So far we have discussed briefly the position of Muslims
as rebels. Some peculiarities of non-Muslim subjects,
when they rebel, may be profitably added.
Rebellion by purely non-Muslim subjects will be treated
as rebellion only in case their territory is surrounded on
all sides by the Muslim state. Non-Muslim rebels of a
province fronting non-Muslim territory are placed by
1 Score of other sayings of the Prophet are recorded by Hadith books,
brought together in Kanzul ‘ ummil , etc.
1 Abu Yusuf, Kharau p. 6 ; Ibn-Qutaibah, ‘ U yun-al-akhbar , I, 3 ; etc.
3 Tabwib of ‘Aliy-al-MuctaqI, from Ibn-Hanbal, Tirmidhly, AbU-Dawud,
etc.
176
MUSLIM CONDUCT OF STATE
Muslim jurists in the same position as ordinary non-
Muslim belligerents . 1 The reason is, as we have seen
before , 2 that all non-Muslim peoples form one category for
Muslim jurists, no matter whether politically they con-
stitute one or several groups. In case of rebels of a
frontier province, the supposition is that they may have
relations with the adjoining non-Muslim state.
Non-Muslim subjects will, however, receive the same
privileges as ordinary rebels, in spite of their being of a
frontier province, when they are not the leaders of the
rebellion but only join hands with the local Muslim rebels . 1
1 Fatdwi Tdtdrkhamvah . ch. Rebels.
1 Cf. supra , part 2. ch. 4, b.
• Sarakhsiy, Mabsut , X, 128,
CHAPTER VIII
International Highwaymen and Pirates
IN early Islamic literature there is scarcely any separate
mention of pirates. Ibn-Sa'd 1 mentions one piratical inci-
dent of Abyssinians in the time of the Prophet, the details
of which are lacking. Generally, pirates are included in
highwaymen. As T a barly a says, there is no difference
between the highwaymen of the country or foreigners, so
far as their treatment is concerned. Of course, we are
concerned here only with the case of international pirates
and highwaymen.
Nearly all the details of the treatment accorded to them
are deduced from or based upon the following verses of the
Qur’an, which were originally revealed, it is said,’ regard-
ing some international brigands and highwaymen (of a
country allied to the Muslim state) : —
The only reward of those who make war upon God
and His Messenger and strive after discord in the land
will be that they will be killed or crucified, or have
their hands and feet on alternate sides cut off, or will
be banished from the land. Such will be their degrada-
tion in the world, and in the Hereafter theirs will be an
awful doom ; save those who repent before ye over-
power them. For know that God is Forgiving, Merciful.
(5 : 33-34).
1 Tabaqat , 2/1, pp. 17- 18. 3 Tafsxr s VI, 135.
a Tafstr, VI. pp. 132*33 ; Asl of Shaibaniy (MS. Wafa-‘Atif, Istanbul).
Vol. II. fol. 40a, ch. <5*^* 8^* Cf. Mabsut of Sarakhsiy. IX, 134.
178
MUSLIM CONDUCT OF STATE
By the unanimity of commentators on the Qur an, the
warring people referred to in the verses are highwaymen,
dacoits and the like. According to law-books, their treat-
ment is :
1. For murder accompanied by plunder, beheading
followed by crucifixion.
2. For murder only, beheading.
3. For plunder only, without loss to life, the amputa-
tion of hand and foot on alternate sides.
4. For only banding together with the intent of
plunder and murder, but having as yet committed nothing
of the kind, discretionary punishment may be inflicted.
The banishment mentioned above is one of the discre-
tionary punishments. It is interpreted either as imprison-
ment, expulsion from the state, externment, or confinement
to a border district with all its hazards. However, expulsion
from the state is never upheld ?if the culprits are of the
Muslim faith, lest they apostatise or join forces against the
Muslim state. 1 *
If subjects of a Muslim state commit highway robbery
in a foreign country even against Muslim subjects, their
case may not be heard in a Muslim court 1 though they may
be extradited if there is treaty to that effect. On the other
hand, if foreigners enter Muslim territory and commit de-
predation on passers-by, their case may be heard in the
Muslim court. 3 In a learned discussion, Ibn-Taimlyah 4 says
that even if the highwayman is superior in status to the
murdered person — if, for example, he is a Muslim, a free
man or a Muslim subject, and the murdered person is a non-
1 Mawardiy, op. cit. pd. 102 06; KasSniy. Bad&'i', VII, 94-95 :Sarakhsiv.
Mabsut. IX. 135.
* Sarakhsiv. Mabsut, IX, 203-04, A si of Shaibanlv. ch. 5^** . fol.
41a
a Shaibgniv. A si ch. ghS (MS. WafS'Atif). fol. 40a.
4 AJuySJl i—U-Jl , pp. 36-37.
INTERNATIONAL HIGHWAYMEN AND PIRATES 179
Muslim, a slave or a foreigner residing in the Muslim
territory — the murderer must be sentenced to death. Citing
a precedent, Ibn-Taimiyah refers to the fact that the Caliph
'Umar inflicted capital punishment upon the watchman of a
gang of highwaymen.
Special Features of their Treatment.
Generally speaking, the treatment of highwaymen is the
same as that of rebels. Yet the following differences 1 may
be noted r—
1. They, unlike rebels, may be pursued in every case.
2. The aim of the expedition must be to exterminate
them.
3. They are held responsible for every act of theirs,
whether committed before the encounter with them or dur-
ing the fight with government forces itself.
4. Pending result of investigation, they may be detain-
ed in prison.
5. The taxes collected by them will be considered as
mere usurpation and the tax-payer may again be taxed.
Obviously he will have a right to the property recovered
from the possession of the highwaymen.
As the Quranic verse quoted above enjoins, if individual-
ly or en masse the gang submit themselves to the authorities
before government can lay hands on them, and give
assurance of repentance and future good behaviour, the
members may be pardoned. In this case, no action may be
brought against them for their past crimes against life and
property.
' MSwardiy, op. cit., pp. 104*05.
CHAPTER IX
War with Non-Muslim Foreigners
WAR is defined by Muslim jurists as the expending of
ability and power in fighting in the path of God by means of
life, property, tongue and other than these . 1 And to rea-
lise this, Muslim doctors enjoin : “ First to preserve one’s
own power and then to break that of the unbelievers and
to subjugate them .” 1 As war to Islam does not allow any
self-seeking aggrandisement at the expense of others, but
simply to establish a theocracy, a Kingdom of God on
earth, no wonder at the insistence upon the point of view
of the soldiery being quite selfless. The slightest desire for
worldly gain pollutes the purity and mars the nobleness of
jihad. Jihad is to be waged solely for the purpose that “the
Word of God shall alone prevail” ^ o*) s
Otherwise Paradise would not be the, reward of such a
soldier.
1 Cf. infra ch. 3. " definition of war.”
* Sarakhsiy ^ , 1, 127 : ( (3
jMt* (3 V J>4j*** I Sj* laAfc. .
1 Bukhariv. 3 : 45, 55 : 10, 57 : 8 and 10, 97 : 28 : Muslim, 33 : 149-151 ;
Tirmidhly. 20 : 16: Nasa’iy. 25 : 21 : Ibn-Majah, 24 : 13 ; Tayalisiy, No. 486-
8; Ibn-Hanbal, IV, 392, 397, 401, 405, 417 bis. Cf. Qur’an,’ 9 : 40, 839, 5 ; 54.
CHAPTER X
Declaration of War
IN a defensive or punitive war, obviously, there is no
need of the declaration or notification to the other party
of the military action. When otherwise, Muslim jurists 1
hold
When Muslims encounter unbelievers to whom Islam
is an unknown thing, Muslims must not attack before
inviting them to accept the ‘Unity of God' as an article
of faith, or to agree to pay the protection tax (jizyah)
—unless they belong to a nation from whom it is not
accepted and who have to choose between Islam and
the sword — (this refers to all apostates and idolaters of
the Arabian Peninsula regarding whom the Qur’an lays
down : “Fight them unless they embrace Islam”)—
and if they are fought against and blood is shed, no
previous warning having been given, the Shafi‘ite
school of thought holds that the Muslim state has to
pay for each human life, destroyed in the fight, as
much blood-money as is prescribed for a Muslim killed
unintentionally. The Hanafite school, however, leaves
the blood of such unbelievers with impunity. But if
such a nation understands fully what Islam means,
warning and excuse may again be made— though this is
not compulsory. For they know why they are attacked, and
an ultimatum may hinder the achieving of the aim. With
this kind of people, however, the Muslim state may fight
1 Sarakhsly. £ y** < 1 57-58.
182
MUSLIM CONDUCT OF STATE
without first inviting them to accept Islam or pay pro*
tection tax.
Instructions of the Prophet are quoted to support this
view. 1 Upon careful scrutiny, however, the above ex-
position of law does not seem to apply except to cases of
individual encounter between bands of two belligerent
states. The main question of the general declaration of
war upon the enemy government does not seem to have
been settled* For this also we may refer to the practice
of the Prophet, that safe and perennial source of Muslim
law. So, in three kinds of cases, the Prophet seems to
have waged war without previous notice.
1. Fresh encounters of an enemy with whom no peace is
made, though the forces of the two parties separated from
each other from time to time. The expeditions against the
Meccans are an instance.
2. Preventive war (against the threatened aggression of
a foreign state with whom no treaty relations exist). The
wars of Banu’l- Musfaliq, Khaibar. Hunain are all of this
kind.
3. Punitive and Retaliatory war (to punish a state for a
breach of treaty). The attack on Banu-Qainuqa\ Banu-
Quraizah, Mecca, etc., are instances thereof. If peace is made
on the payment of tribute/and later the payment is withheld,
there is some divergence of opinion as to the question
whether an ultimatum is necessary or attack may be launch-
ed without further notice. (Cf. Miwardly, op. cit„ ch. iv.)
In all other cases, previous declaration is necessary, and
especially so against the threatened violation by a state with
whom treaty relations exist. So the Qur’in lays down :
And if thou fearest treachery from any folk, then,
throw back to them (their treaty) on a par. Lo ! God
loveth not the treacherous. (8 ' 58).
1 For instance, of Muslim (ed. Istanbul), V, 139-40.
DECLARATION OF WAR
183
And as-SarakhsIv comments on this verse in the follow-
ing terms :
On a par, that is, you and they are on a par with
regard to knowledge* And thus we learn that it is not
permissible to fight them before throwing back (the
treaty) and before their knowing that. 1
Further discussion will be found in a subsequent chapter
on truce and armistice.
Sarakhgiy. Mabsvt, X, 87.
CHAPTER XI
Effects of Declaration of War
PROBABLY due to the practice prevalent in the time of
classical jurists in countries adjoining Muslim territory, all
enemy persons and property were considered as in a state of
war. Although treatment differs from category to category,
as we shall see in due course, no one can claim complete
immunity. Every able-bodied man* was considered a poten-
tial combatant, and even women and children could be
taken prisoner.
1. General Effects.
Obviously all friendly relations come to an end between
the belligerent states as well as their subjects. Envoys are
recalled. The public forces of the state get the right to fight
the enemy and inflict damage according to their laws of war.
Officials and private citizens, all are prohibited from giving
the enemy any help, comfort or information. The case of
Hatib,* who attempted to send information to the enemy
regarding Muslim designs, and the consequent trial, form a
classical example of the time of the Prophet. The constitu-
tion* of the city-state of Madlnah during the early years of
Hijrah also enjoins the same thing (vide § 20, 43). The
Qur’an also clearly lays down : ‘‘Let them find you
rigorous” 1 * * 4 and again : “Be rigorous with them.”* Neverthe*
1 See infra, chapter XIII, 2.
1 Ibn-HishSm, pp. 809-10 ; Jabariy, Hist., 1, 1626-27.
* For text, sec Ibn-Hish5m, pp. 341-44 or my Corpus.
* Qur’Sn, 9 : 123. * Idem, 9 : 73.
TERATMENT OF ENEMY PERSONS
185
less it is characteristic of the Quranic teaching to emphasise
the following regarding the Quraish, the bitterest of the
enemies of Islam at the time :
“ And let not your hatred of a folk who (once)
stopped your going to the Inviolable Place of Worship
(t.e. Ka'bah in Mecca) seduce you to transgress ; but help
ye one another with righteousness and pious duty. Help
not one another unto sin and transgression, but fear God.
Lo ! God is severe in punishment.” (5 : 2).
Far from banning all co-operation with the enemy, this
Quranic command urges that there must be co-operation re-
garding charitable and pious matters. Commentators of
this verse refer to cases which were the occasion of the
revelation of this command, cases in which Muslims were
justified in taking counter-measures against their enemy but
were prevented on humanitarian grounds.
2. Effects on Commercial Relations.
I have not been able to find much material on this im-
portant subject in the compendia of Muslim law. A few
cases of classical times may, therefore, be profitably quoted.
(a) Sa'd-ibn-Mu'adh says that he was a friend of
Umaivah-ibn-Khalaf alias Abu-§afwan. If Umaiyah passed
through Madinah, he stayed with Sa'd, and if Sa'd passed
through Mecca, he stayed with Umaiyah. When the Prophet
came to Madinah, Sa'd went to Mecca for the 'Umrah
pilgrimage and stayed with Umaiyah, and told him to find
some suitable hour for accomplishing the circumambulation
of the Ka'bah. So they went out at about noon. AbQ-Jahal
met them, and asked Umaiyah : O Abu-§afwan, who is
this with thee ? He said, Sa'd. Then AbQ-Jahl turned to him
and said ; Don’t I see thee circumambulating with peace
in Mecca in spite of the fact that ye have given asylum to
innovators (t.e. Muslims) and pretend that ye will help them
186
MUSLIM CONDUCT OF STATE
and aid them ? By God, hadst thou not been with Abu-§afwan
thou wouldst not have returned to thy people in safety. Sa'd
loudly retorted : By God, if thou preventest this, then I
shall prevent thee in what is much worse for thee : thy
passage through the people of Madlnah. 1 *
(b) ‘Abd-ar-Rahman-ibn-‘Awf says : I concluded a pact
with Umalvah-ibn-Khalaf in order that he might protect my
belongings in Mecca and I protect his belongings in Madlnah.
When I wrote my name Abd-ar-Rahman,” he said: I do
not know this, but write thy pre-Islamic name. So I signed
“ ‘Abd-Amr. ” When it was the day of Badr *
Both these cases refer to very early days of Hijrah,
before the battle of Badr, which occurred in the year 2 H.
Therefore not much importance must attach to them, the
more so on account of the fact that there is no evi-
dence of their having happened with the knowledge and
approbation of the Prophet.
Thumamah-ibn-Uthal was a chieftain of Yamamah.
Early in the year 6 H., he was taken prisoner by a Muslim
detachment, and brought to Madlnah. Here the gentle
treatment of the Prophet impressed him so much that he
embraced Islam. On return journey, he passed through
Mecca and heard some abusive cuts on his conversion.
He said : Not a grain of Yamamah can now be imported
into your city, unless the Prophet directs otherwise. A
famine is said, consequently, to have ensued in Mecca.
The Meccans were constrained humbly to beseech the
Prophet to lift the ban, which he graciously did. 3 Although
many details of this case lie in darkness, it is sufficient
for us to conclude that it all depends upon a government
1 Bukharly, 64 : 2 (ch. Wikalah).
* Idem , 40 : 2 (ch. MaghazI)).
9 Ibn-HishSm, do 997-8; Ibn-’Abd al-Bar. No. 278; Ibn-Hajar. Isabah
No. 961 ; Ta'rikh al-Khamis ; II. 3 ; cf. Ibn-Sa‘d, V, 401.
EFFECTS OF THE DECLARATION OF WAR
187
to direct its subjects whether and how far they may trade
with an enemy.
(d) The Prophet himself once sent a quantity of the
dates of Madlnah to the Meccan magnate, Abfl-Sufyan,
and required in return hides. This is said to have occurr-
ed at a time when hostilities were continuing between
Mecca and Madlnah. 1 This further strengthens our conclu-
sion that it all depended upon state policy what things were
to be declared contraband of war and trade, and which not.
3. Effects on T rusts and Debts.
Although international credit of 1300 years ago can
scarcely be compared with modern magnitudes, still we may
be guided by a few classical cases and provisions of positive
law in general terms.
(a) When the excesses of the Meccans had reached their
climax, and they had actually plotted against the life of the
Prophet and consequently he left Mecca to seek safety in
Madlnah, he bade his cousin, ‘Aliy, to return all that was
entrusted to the Prophet by his infidel and actually bellige-
rent co-citizens. 2 There is no doubt that the Meccans could
be considered at that time as belligerents. 3 We do not
think the action of the Prophet would have been different
at the height of his power.
(b) During the war of Khaibar. the Prophet ordered
Aswad, a slave of a Khaibarite Jew, who had come to em-
brace Islam along with all the sheep and goats of his master
which be tended as a shepherd : Go to a safe distance
1 Sarakhsly. I. 70; Idem , ±y***+ % X, 92.
2 Ibn-Hisham ’ p. 334~Ibn-Sa‘d, 3/1, p. 13; Mas'udiy, at-TanbxK p. 233.
2 Ibn-Hisham, pp, 323-24 :
UjJi* A*L<ULe - - - - Ail }
liojCfc. tfyolo O* 0
Also p, 296 for provision in the pact of ‘Aqabah; cf, Ibn-Sa'd, 1/1, pp.
148-50.
188
MUSLIM CONDUCT OF STATE
and then frighten the herd so that it takes its usual way
home to its master. 1 *
(c) During the reign of the Caliph ‘Umar, IJims was
occupied by Muslim troops and the usual taxes were
levied and collected from the inhabitants. Later, mili-
tary exigencies required the evacuation of the city.
Thereupon the Muslim commander ordered all taxes to
be returned to the inhabitants, saying : We promised to
protect you. Since we can no longer do that, we have
no right to your payments.*
The Qur’an commands :
». Lo ! God commandeth you that ye restore deposits
to their owners, and if ye judge between mankind, that
ye judge justly. (4 : 58).
ii. ...And if one of you entrusteth to another, let him
who is trusted deliver up that which is entrusted to him
and let him fear God. (2 : 283).
In the sayings of the Prophet we find :
i. The sword erases all obligations except the debt. 3
it. Whoever is entrusted with a deposit, let him
deliver it up to the one who entrusted it to him. 4 *
No doubt responsibilities and obligations may be renounced
on the ground of retaliation, 3 yet one’s burden should not
be placed upon another who is innocent. 6
However, it has not been possible for me to trace any
1 by al-Kula‘Iy, fol. 7 5b of Berlin MS.;
Ibn-Hishara, pp. 769-70.
* Abu-Yusuf, Khardi . p. 81, Baladhuriy, Futuh*173 , Azdiy. Futuk , 137-8,
De Geoje, Mdmoire sur la conqutee de la Syne , 2nd ed., pp. 103 4.
1 Sarakhsly, ^ Jo, I, 20.
4 Occurring in the oration of the last Pilgrimage, text in my—
Aw(ju«J\ on the authority of Ibn-Hisham, Tabarly. Ya^ubly and
£>UJl of Jaihz.
6 Qur’an, 16: 12, 1 : 38, 40 : 40, 42, 40 6 : 161 ; etc.
• Qur’an. 6:165, etc. y^ 'iy \ , Vj).
EFFECTS OF THE DECLARATION OF WAR
189
precise practice regarding the subject during the later
Muslim empires.
4. Effects on Treaties.
Scarcely any book on Muslim law or politics discusses
the theoretical aspect of this question. Yet it is obvious
that mere declaration of war cannot affect all the treaties
that were concluded between the parties at war with
each other.
Treaties which have achieved their aim, for instance, the
fixing of boundaries and the like, are not affected by mere
declaration of war. We are not concerned here with
changes that the war under discussion may bring out regard'
ing questions previously settled.
On the other hand, treaties of friendship and good
neighbourliness, alliance and mutual assistance and the like,
are rendered null and void if such contracting parties choose
to declare war upon each other. ’
Apart from these two obvious kinds, there are treaties
which remain suspended during friendship and are enforced
only when hostilities involve the contracting parties in
battle. This refers to treaties for mutual conduct during
war. Such treaties are old enough to be mentioned by
ash-Shaibaniy 1 who gives many fictitious cases of such
treaties regarding the treatment of prisoners of war, cutting
off of the water-supply, devastation of occupied or evacuated
country and the like.
There are treaties which are individually disposed of at
discretion : they are cancelled, suspended or modified. This
refers to treaties of trade and commerce, import duties and
the like. 2
In modern times, there are treaties which though suspen- ■
1 Cf. Sarakhsly, ^SUI ^JU«JI ^ I, 200-05.
1 Cf . supra , *" Effect on Commercial Relations.”
190
MUSLIM CONDUCT OF STATE
ded during a war, automatically revive at the conclusion
of peace if the ex-belligerents retain their independence.
Such are treaties for the exchange of post and telegrams and
similar things.
So far we have referred to bilateral pacts. Multilateral
treaties give greater complexity to the problem when some
of the parties remain neutral and others join the conflict on
one or the other side. There may even be cases when,
neutrals apart, all the remaining parties of a former treaty
join a war en bloc against a country alien to the treaty in
question.
Obviously the nature of the convention or the contents
of the treaties constitute the decisive factor. We possess
no data to rely upon except a few cases of the Orthodox
Practice.
The classical treaties require an exhaustive study. Here
I content myself with the citation of a few cases of the time
of the Prophet.
(«*) When the Prophet migrated to Madlnah, he found
there chaos and anarchy. It was he who constituted 1 a city-
state there on a loose confederal basis. The Meccan
refugees formed one unit ; Arab tribes of Madlnah consisting
of Muslim and non-Muslim clans all joined individually ;
and the Jewish tribes also entered the federation, each tribe
forming a separate entity. The internecine feuds among
Jews as well as Arabs of Madlnah had not yet welded them
into solid blocks, and in fact in pre-Islamic days some Arab
tribes had allied themselves with some Jewish ones in order
to secure themselves against another block of Arab and
Jewish tribes all living within the precincts of a valley about
fifteen miles long and as wide. Apparently this separate
and individual adherence to the confederation was the reason
why the pact remained intact even when some Jewish tribes
3 Text of the Constitution in Ibn-Hisham, pp. 341-44, etc.
EFFECTS OF THE DECLARATION OF WAR
191
came to war with the Muslims of the city-state. This
refers to the clans of Qainuqa*. 1 * Later still, when other
Jewish tribes came into bloody conflict with the Muslims,
the other Jews of the city either remained neutral or even
helped the Prophet against their co-religionists.* After the
expulsion of certain Jewish tribes from Madinah, the Prophet
demanded of some of the remaining Jews, on the ground
of this very pact which constituted Madinah into a city-
state, to participate in contributing towards the payment of
the blood-money for a certain case of homicide. 3
ib) Another case of a multilateral treaty in the time of
the Prophet is the famous one of Hudaiblyah 4 between
Mecca and Madinah to which some tribes had adhered on
either side. When the Meccans once molested the tribe
adhering to the Muslim side, the whole pact of non-aggres-
sion and trade facilities was considered by the Muslims null
and void.
How to conclude, amend or annul the treaties will be
dealt with later.
1 IVin-Hisham, pp 545-46; my La Diplomatie Musulmane , I, 26.
1 Saiakhsiy, Mabsut , X, 23.
3 Ibn*Hisham, p. 652, Ibn-Sa‘d, 2/1, pp. 40-41, Tabarly, I, 1449-50.
4 Ibn-HishSm, pp. 747 43 and my Corpus .
CHAPTER XII
Treatment of Enemy Persons
AT the outbreak of a war, enemy persons might be found
either in Islamic territory, having come there by permission
previously, or in their own territory, or in the war zone.
Treatment of these different categories differs considerably.
I. Enemy Resident Aliens.
By Musta'min in Muslim legal terminology one means a
person who temporarily resides in a foreign country, by its
permission. There are, in Arabic, no different terms which
distinguish between a Muslim going to non-Muslim
territory and a non-Muslim coming to Muslim territory
nor even between a subject of an allied state (who is other-
wise called Muwadi , but for the purpose of this chapter
he is also a Musta'min) or unallied or even belligerent state.
All are alike called Musta'min which literally means one
who seeks protection.
Such a foreign resident in Muslim territory is as safe at
\the outbreak of war between his state and the Muslim state
as before . 1 According to the terms of the passport he might
return home whenever he liked ; he might even take with
him all his property. Contraband is certainly excepted yet
anything he had actually brought with him he might take
back . 1 Newly bought contraband of war has to be sold
or otherwise disposed of in Muslim territory itself. Gene-
1 Kasaniy, VII, 107, ll. 15-16,
1 Sarakhsiy, Mabsut, X, 91-92.
EFFECTS OF THE DECLARATION OF WAR 193
rally a resident alien can go from Muslim territory in
whichever direction he chooses, yet a big, detachment of
them would not be allowed to go to some other country
which is at war with the Muslim state when it is feared
that they would join forces there against the Muslims, 1 * *
They can, however, return to their own country unmolested
even when it is at war with the Muslim state. 8 For to
detain them would be violation of pledge. If a Musta'min
acts as a spy, he forfeits his immunity. This also happens
if a Musta'min of a belligerent state becomes an ordinary
belligerent immediately after leaving Islamic territory, and
his immunity that he enjoyed during his stay in the Muslim
territory comes to an end.
2. Enemy at Home.
Enemy persons living in their homes have to suffer the
severities of siege and other incidents of war. When their
town is conquered and occupied by Muslim forces, their
treatment depends on the terms of surrender and capitula-
tion or general proclamation by the officer commanding.
Other details will follow.
3. Enemy in the War Zone.
In the actual war zone not only the enemy combatants
1 Idem, a-JI 1V - 121-22 :
UjJI 1 JaI ^ ,J ^
^*-66 ili ^>06 lib j\>
*1 l^a.1^ £>l ^ ^
v—y*. j\> Jl cy ji-c
U jIjJIsJL* Jjkl 2,5 >\>}i 0 V
. JaI l>l
1 K5san!y, etc., in loco.
194
MUSLIM CONDUCT OF STATE
but even others could not claim absolute security. Of
course, Muslim soldiers have to take care that they do not
fire directly on neutrals, women and minors and other non-
combatants, yet if any damage is done to them uninten-
tionally, no responsibility is to be placed on the Muslim
army.
So far as war is concerned, no distinction is made
between an enemy subject and foreign allies taking part in
fight. But distinction is made between able-bodied comba-
tants and followers of the army, contractors, traders,
physicians, reporters and others who do not take part in
actual fighting. The wives and children of enemy comba-
tants also share some of the severities of war, as will be
described in the following chapters.
CHAPTER XIII
Acts Forbidden
IN actual fight the following acts are forbidden to a
Muslim army as regards enemy persons and property.
1. Unnecessarily cruel and tortuous ways of killing*
The Prophet has said in this connexion : “ Fairness is
prescribed by God in every matter ; so if you kill, kill in
a fair way." 1
2. Killing non-combatants. 2 * 4 Combatants are only those
who are physically capable of fighting aJ ^ AJSlii!)
JlixU £1L»). S * Women,* minors,* servants and slaves who
accompany their masters yet do not take part in actual
fighting, 2 the blind,® monks, 7 hermits, 8 * the very old,® those
physically incapable of fighting, 10 the insane or delirious 11 * —
these are authoritative examples thereof.
3. Prisoners of war are not to be decapitated. 18 De-
tails of their treatment will be given in a separate chapter.
1 Sahib of Muslim, (ed. Istanbul), VI, 72.
I Mabsut of Sarakhsiy X. 64.
IV. 78.
4 Idem, 1 , 59, 34. Exceptions in special cases, Lun.ll, IH> ch.
p. 266, on the authority of Shaib5niy. /
* IV, 79-80.
4 MabsHX of Sarakhsiy, X. 69.
' ^wJl c *£», I. 33.
4 Idem, III, 190
* Mabsut of Sarakhsiy. X, 6.
14 Idem, p. 69.
II Mabsut of Sarakhsiy, X, 69.
“ Cf. infra , ch. 15.
196
MUSLIM CONDUCT OF STATE
4. Mutilation of men as well as beasts. 1 * *
5. Treachery and perfidy*.
6. Devastation, destruction of harvest, cutting trees
unnecessarily. 1
7. Slaughtering animals more than what is necessary
for food. 4 *
8. Excess and wickedness. 1
9. Adultery and fornication even with captive women.
As regards a free enemy woman, the violator is to be stoned
to death or whipped according to whether he is married or
unmarried. If, however, she is a captive, he is to receive dis-
cretionary punishment and to be fined as much as a JJ* y?*
( i.e ., what his nearest female relatives would have received as
bride-money) which would be added to the general booty. 6
10. Killing enemy hostages, even if those of the Muslim
state have been murdered by the enemy, and even if there
is express agreement that hostages may be beheaded in
retaliation. 7
11. Severing the head of some fallen enemy and sending
it to higher Muslim authorities is regarded as improper and
disliked ( ). The first Caliph issued orders forbidding
it. 8
12. There is no instance in the time of the Prophet
when a massacre was allowed after vanquishing the enemy
1 , - — J l I. 78, Tirmidhiy. 19: 48, Abu-DSwud, 15: 110.
* 'Abd-al-Jalil, §hu'ab al-imdn, p. 558, ch. Waf3’al-‘ahd ma'a al-
mushrikin (MS. Bashir Agh3, Istanbul, No. 366), sayings of the Prophet
collected together. Cf. Qur’an, 17 : 34, etc.
* ^-*5^)1 c Jo, I, 27, 34 ; Qur’an, 2 : 205.
4 1,36.
* J Idem . I. 37.
' Mawardiy, op, cit., p. 88.
7 Idem, p. 84, Mabsut of Sarakhsiy, X, 129.
* Sarakhsiy, Mabsut, X, 131 ; ^JJl ^wJI c Ji, I, 78.
ACTS FORBIDDEN
197
or otherwise occupying a place. The conquest of Mecca
provides a fine example. After all those innumerable physi-
cal tortures and proprietary damages which the Muslims
had received at the hands of their Meccan enemy, when
the Prophet conquered the city, he declared a general
amnesty excluding expressly about half a dozen named
persons, who were declared outlaws to be killed where-
ever found. They were state criminals having committed
murder and apostasy or similar offences. Later, these also
were pardoned, except three who were killed by Muslim
soldiers without referring again to the Prophet. 1
13. Killing parents, except in absolute self-defence,
even if they are non-Muslims and in the enemy ranks.
There are more cases than one in which the Prophet for-
bade persons who had asked for permission to kill their
non-Muslim parents on ground of hostility to Islam. 2
14. Killing peasants when they do not fight and the
result of war is indifferent to them. 3
15. Traders, merchants, contractors and the like are
to be spared if they do not take part in actual fighing. 4
16. Burning a captured man or animal to death. Once
the Prophet despatched a band with the instruction to
arrest a culprit and burn him alive ; but he immediately
recalled them and ordered them not to burn the criminal,
but simply to kill him ; for, he said, only the Lord of
1 Ibn-Hisham, pp. 818-19 ; Tabariy, Hist.. I. 1639ff.
* ju~Jl I. 75-76. Ill, 183, 192.
3 Idem , IV, 79 ; tor order and practice of Abu-Bakt, cf. Tabariy, I, 2026,
2031 ; for ‘Umar cf. Ibn-Rushd, dotjo, I* 311, Khardi of Yahya-
ibn-Aaam fed Brill', p. 34.
4 Khardi of Yahya, p, 34 :
cf. Khardi of Abu-Yusuf, p. 122 for similar kind of non-fighting followers
in Muslim army.
198
MUSLIM CONDUCT OF STATE
Fire can punish with fire. 1 *
17. It appears that in classical times of Islam, it was
a prevalent practice among non-Muslims to take shelter
behind enemy prisoners. 3 * I have not found a single in-
stance where Muslims were accused of this cowardly act
when they forced their prisoners to fight against their own
nation.
18. The Malikite jurist, Khalil, expressly says that
poisonous arrows are unlawful ( J*> ).* Jurists
of other schools have not referred to the subject, so far as
I know, owing apparently to non-employment of similar
weapons by enemies in the countries where they lived.
19. Acts forbidden under treaties. Many fictitious
cases of this kind are mentioned by ash-Shaibaniy,*
which shows that it was common practice in those days
to agree what not to do in the conduct of war regarding
prisoners, devastation, cutting off the water-supply and
the like.
It is to be noted that acts prohibited under treaties are
forbidden only so long as the treaties last. 5 Other prohibited
acts form part of the injunctions of positive Muslim law,
and they cannot become allowable even in reprisal ; the
immediate criminals and not their countrymen are to be
considered responsible. 6 Muslims are not allowed to hold
1 Tirmidhiy, II, 298. ch. ^UJb Jjy.1 ; y*— J! III. 214;
Bukhariv. 55 : 149 ; Ibn-Hisham, pp. 468-9.
* Cf. AbQ-Ya'la J p. 25 (MS. Istanbul and Dam-
ascus). The expression is mct wlt h frequently.
* (Jjklk. j-oXsa.*, ch. Jihad ; cf. however, infra, Ch. XVII, 3.
* juSJl I, 200-05. Contrast with contemporary Christian
Practice, Nys, Origines, p. 221.
* jA , J JSJ lylLL-il L», (Qur’an, 9 : 7),
***» (a Hadljh quoted by ^u£J| ^J\ *, f
I., 185). C
* Qur’an, 6 : 164, 17 : 15, 35 : 18, 49 : 7, 53 : 38.
ACTS FORBIDDEN
199
slogans similar to : “We are not bound to keep faith with
the Gentiles,” 1 enunciated, according to the Quran, by Jews
and reiterated by Papal bulls during the Middle Ages. a
A selection of Instructions to Commanders, issued by
the Prophet and later Caliphs, will be found in an appendix
at the end of this monograph.
1 Qur’Sn, 3 : 75.
* Cf . supra , Part I, Ch. X, paragraph 9 .
CHAPTER XVI
Giving Quarter
QUARTER, which is based upon a Quranic verse ( “And
if anyone of the Associators seeketh thy protection (O
Muhammad), then protect him so that he may hear the
Word of God, and afterwards convey him to his place of
safety” 1 ), is defined by jurists as:
«*3»\ U*. JJJiJh ^ jywUI & lJlSJI f I p\
i.e. Quarter means the practice of refraining from
opposing them (i.e. the belligerents) through killing or
capturing, for the sake of God. *
Quarter might be granted to enemy persons when they
solicit it individually or en masse. If surrender is un-
conditional, they become prisoners of war, and their
property booty. This occurs generally when they are
besieged or fought in the open and reduced to great straits.
In a conditional surrender, capitulation as it is termed,
if conditions were accepted by the conqueror, those con-
ditions must be faithfully observed, and Muslims must abide
by their conditions
Quarter might also be granted to enemy persons with-
out their soliciting it, through a general proclamation. So
at the time of the conquest of Mecca, the Prophet made it
known that all those persons were safe who ; entered the court-
yard of Ka‘bah or the house of their chief, Abu-Sufyan,
1 Qur'an, 9 : 6.
1 Sarakhsiy, »juJI 1.189.
* Ibid., 185, on the authority of the Prophet.
GIVING QUARTER
201
or who shut up the doors of their houses, 1 or laid down
their arms. 2 From this general amnesty a few were speci-
fically excepted for their non-military offences.
The modes and expressions of quarter are discussed in
great detail by Muslim jurists, 3 which shows the great im-
portance they attach to the fulfilling of terms accepted in
good faith.
According to an oft-quoted Hadith of the Prophet, even
the lowest of the Muslims may grant quarter which will
be binding on the totality of the Muslim state.* So this
right is possessed not only by the combatants, potential
or active, but even by others incapable of fight, 3 * by the
sick 3 and the blind, 3 and even by slaves. 6 The Prophet,
more than once, rendered the quarter given by women
valid. 7 Naturally, the minors, the insane, and those under
enemy control ( e.g ., prisoners, tourists, etc.,) are excepted, 8
so long as they are under non-Muslim jurisdiction. Their
incapacity terminates as soon as they reach a place outside
non-Muslim jurisdiction : Muslim territory or no-man’s-land.
(Cf. supra. Part 2, Ch. 3, last para).
Non-Muslim soldiers of the Muslim army, allies or other-
wise, and even non-Muslim subjects of the Muslim state are
1 lbn-Hish,Sm , p. 814.
* Mabsut of Sarakhsiv. X, 39 ; Asrclr of Dabusly, fol. 1466 (MS. Wallud-
dln. Istanbul. No. 1402); Tanbih of Mas'udiy, p. 267 ; Kharaj of Abu-Yusuf,
p. 131 ; Kharaj of Qudamah-ibn-Ja‘far, ch. 19, §9 (MS. Istanbul).
* Sarakhsiy, J' 1. 189-362 ; in loco.
4 Do. 1, 168-69.
* Ibid, 1. 189 ; KasBnly. VII, 107.
6 Do. I, 171-72, quoting a case of the time of the Caliph ‘Umar re -
JundaisSptir. See also Tabarly, Hist., I f 2567-68.
7 Sarakhsiy, I, 191-92, Tirmidhiy. II, ch. t»l
c ^ ’ p< 127.
* Sarakhsiy, ^ 1, 192 ; Idem, Mabsut, X, 71.
’202
MUSLIM CONDUCT OF STATE
denied this right of granting quarter, 1 except when authorised
by competent Muslims. 2 3 It is admitted that the commander
of the Muslim army might notify that the enemy might not
be given quarter by an individual Muslim other than the
commander himself. Without such previous notification,
the enemy might not be deprived of the right of soliciting
quarter from individual Muslims. 9 In the Constitution of the
City-State of Madlnah, promulgated by the Prophet, (§. 20a,
and 43) there are clear exceptions to the general right of
granting quarter ; and neither the Arab nor the Jewish
citizens of the City-State could protect the Quraish or even
their allies.
Quarter might for good reasons be revoked, but in such
cases the enemy concerned must be allowed to return to the
same position of safety and resistance as he was in when the
quarter was granted. 4 *
Quarter might even be temporary or conditional. The
Prophet accorded Mu‘awiyah-ibn-Mughlrah three days to
quit Madlnah. 9 Jews of Khaibar were told that their quarter
would be forfeited if they hid their property. 6
Quarter is sometimes granted for persons absent, and
necessary assurances are provided in order to create confi-
dence. On one such occasion the Prophet sent his turban. 7
If a quartered belligerent is unwittingly molested, right
to damages accrues. 8 The case of the two persons from
Banfl-‘Amir may be cited here, as an instance of the time of
1 Sarakhsiv. .•*.-“«.]! r I, 172.
* Ibid., I. 291-92.
3 Ibid., I, 356-359.
* Ibid., 1, 357.
6 Kamil of Ibn al-Athir, II. 127-28 (after the battle of Uhu.fi ;
I, 328.
* Sarakhsiv. I, 185-87.
7 Tabarly. Hist., 1, 1645.
8 A-JUy ch. XI
GIVING QUARTER
203
the Prophet, which happened just before the battle of the
Jews of Banu-an-Nadlr of Madinah . 1
Generally speaking, quarter is strictly a personal matter,
and not transferable. If not expressly otherwise mentioned,
it did not protect even the grantee’s family, less so his pro-
perty. This applied, however, only when one was in
immediate danger . 2 On the other hand, when one was safe
in his home, and quarter was solicited, then it adtomatically
included life, property, wives, children of minor age, un-
married daughters and sisters, mothers and grandmothers,
and aunts of both the mother and father’s side . 3 In case of
license to trade, even the servants and slaves used to be
included in the time of classical jurists . 4
1 Ibn Hisham, p. 652 ; Ibn Sa'd , 2/1, pp. 40-41 : Tabariy, Hist., 1, 1449f.
1 Muhit by Radiyuddln as-Sarakhsiv. I, fol. 602£>-603a (MS. Walluddln).
3 Ibid; Sarakhsly, I I r- j^ 3 , I, 233-38.
4 Sarakhsly, ibid.
CHAPTER XV
Treatment of Prisoners of War
THIS subject naturally falls into two parts, viz., Muslim
soldiers or other subjects made captive by the enemy, and
the subjects and soldiers of the non-Muslim power taken
prisoners by the Muslims.
2. Muslim Prisoners.
A Muslim prisoner is bound to observe faithfully his
parole and honour. 1 * * 4 If, however, he had given no parole, he
is at liberty, if he likes and is able, to escape or otherwise do
harm to his captors. 1
As regards Muslim subjects, it is the duty of the Muslim
state to seek their release by giving money from the public
treasury. 5 The Qur'an clearly lays down that a portion of
the state income is to be allotted for freeing the necks,* which
is interpreted 5 as aiding the prisoners and slaves to get them-
selves freed. There are clear traditions of the Prophet also
to the same effect recorded by Bukhariy and others; for
instance : “ Manage the release of the prisoner (<yUJI 1*6), 6
As regards practice, I have not found any precedent of the
time of the Prophet when ransom was paid for the release
1 Sarakbsiy idem, IV, 223, citing actual cases of the time of the Prophet.
* Ibid., p. 219ff.
1 Khar ii of AbU-YOsuf, p. 121.
4 Qur’an, 9: 60.
4 See any commentary on the Qur’an in loco. Also Ibn-Taimiyah, op.
cit., p. 17: (^YUjJUl 5 &iU dui Jijo v-itfjJl S)
* Bukhariy, 56 : 171.
TREATMENT OF PRISONERS OF WAR *
205
of Muslim prisoners. Exchange of prisoners will, however,
be dealt with later. The, Caliph ‘Umar, however, ordered :
“ Every Muslim prisoner in the hands of non-Muslims must
be relieved by means of the Muslim state-treasury.” 1 Re-
garding later times, al-Maqrlziy records and describes more
than half a dozen general releases of Muslim prisoners by
their enemy. 3 Historians of foreign countries have also
recorded it. Finlay, for instance, says : “ Regular exchange
of prisoners with the Muslims commenced as early as the
reign of Constantine V, A.D. 769. In the year 797 a new
clause was inserted in a treaty for the exchange of prisoners,
binding the contracting parties to release all superannuary
captives on the payment of a fixed sum for each indivi-
dual.” 1
Their wills and testaments, when received in Muslim
territory are to be valid for the property of the deceased
Muslim prisoner situate under Muslim jurisdiction. 4
2. Enemy Prisoners captured by Muslims.
As regards taking prisoners, there are two Qur’anic
verses :
i. Now when ye meet in battle those who disbelieve,
then it is the smiting of the necks until ye have routed
them ; then making fast of bonds ; and afterwards
either grace or ransom till the war lay down its burdens.
(47 : 4).
it. It is not for any Prophet to have captives until he
1 Kharaj of AbG-YQsuf, p. 121:
aS J' J^)
* Khitat of Maqrlziy, ch. OSr as-Sana'ah. Cf. Kamil of Ibn al-Athlr.
VIII, 269. anno. 326.
1 Finlay, II, 89. cited by KhudS Bakhsh in the English translation of.
Von Kremer’s Orient, p. 323, note.
4 Sarakhsiv. IV. 229.
206
MUSLIM CONDUCT OF STATE
hath routed (the enemy) in the land. (8 : 67).
— lln both these verses the verb occurs which means
to route, to dominate, to subjugate. Cf. for this expression
History of Tabarly, I, p. 1855, l. 11, and also the Tafsir of
the same author in loco. Cf. also CAb*£> by al-
Maturldty (d. 333), who commenting on the latter verse
gives it similar meaning :
JjJUI lil Ji*. ^1
5 i aj'j itjW*) iSji,
-(awAi’.il*.
According to Muslim law, a prisoner qua prisoner can-
not be killed, Ibn Rushd even records a consensus of the
Companions of the Prophet to the same effect. 1 This does
not preclude the trial and punishment of prisoners for
crimes beyond rights of belligerency. For this we possess
the high authority of the practice of the Prophet when two
prisoners of the battle of Badr were beheaded by his order. 2
Muslim jurists clearly recognise that a prisoner cannot be
held responsible for mere acts of belligerency :
£ 2 * liod* lyl'il to Jjfcl &i\5S j
^ JlyoVl
-JlU dUUJ _5 jsj uJIS lyk 3 ^x»L. s
i.e. Similarly there is a unanimity that belligerents
would not be held responsible for damage they inflicted
on Muslims regarding life and property. This would be so
even when they embrace Islam or become Muslim sub-
jects. For they did that conscientiously and in accordance
with the dictates of their religion and at a time when
they were authorised to do that. So they were on the
same footing as Muslims. The same is true regarding the
1 I, 351 <ed. Mustafa Babi Press).
a Ibn-Hisham. p. 458. Both were inveterate foes of Islam ; their re-
lease was dangerous for Islam.
TREATMENT OF PRISONERS OF WAR
207
' capture of property . 1
Treatment during captivity has been the subject of liberal
provisions. As regards the prisoners of Badr, the Prophet
ordered : “ Take heed of the recommendation to treat the
prisoners fairly ” 2 ( ). The consequence
was that many Muslim soldiers contented themselves with
dates and fed the prisoners in their charge with bread . 3
Abu-Yflsuf remarks that prisoners must be fed and well
treated until a decision is reached regarding them.* They
are not to be charged for their food, the cost of which is to
be borne by the capturing Muslim state . 3 The Qur’an lays
down : “ Lo ! the righteous shall [go to Paradise]
(because) they perform the vow and fear a day whereof the
evil is widespreading, and feed with food the needy wretch,
the orphan and the prisoner, for love of Him, ( saying ) : we
feed you, for the sake of God only , we wish for no reward nor
thanks from you ." 6 Prisoners are to be protected from heat
and cold, and the like. If they have no clothes, these might
be provided— as was the practice of the Prophet . 7 If they
are in any trouble or discomfiture, this is to be done away
with as far as possible, for which also there is authority of
the practice of the Prophet . 8 He has the right to draw up
wills for the property at home . 9 Obviously these would be
communicated to the enemy authorities through a proper
channel. Among prisoners, a mother is not to be separated
from her child , 10 nor other near relatives from each other . 11
The position and dignity of prisoners are to be respected
1 Dabusly, Asrar, fol. 148a. 2 Tabarly, Hist., I. 1337-38.
3 Ibid. 4 * Khardj , p. 88.
6 Ibid . 6 Qur’an, 76 : 5-9.
7 Bukhariy, 56: 142, Ibn-Sa k d, 2/1, p. 111.
8 Kdmil of Ibn al-Athlr, II 99. See also ch. Prisoners of Badr, etc. in
any Seerat-work.
• Sarakhsiy. Jo, IV. 229.
10 Ibid., IV.. 241-43. C ' 11 Ibid.
208
MUSLIM CONDUCT OF STATE
according to individual cases . 1 * A tradition is also attributed
to the Prophet : “ Pay respect to the dignitary of a nation
who is brought low. ” a There is no evidence in early
Muslim history of exacting labour from prisoners. If they
tried to escape or otherwise violate discipline, they might he
punished . 3 If they succeeded in their attempt to escape and
reach safety ( ) and are again captured, their previous
offence of escaping might not be ground for punishment , 4 5
except perhaps the breach of parole.
Muslim law leaves to the discretion of the commander to
decide whether prisoners of war are to be (a) beheaded, (b)
enslaved, (c) released on paying ransom, (d) exchanged with
Muslim prisoners, or (e) released gratis. We shall treat
them separately.
(a) Beheading of Prisoners.
We have already seen, prisoners surrendering on condi-
tions, are treated according to the terms of their capitula-
tion. On unconditional surrender, mere past acts of
belligerency constitute no ground for inflicting capital
punishment. No doubt, crimes other than these might
bring punishment on the prisoner. According to Abu-
Yusuf, a prisoner might be beheaded only in the interest of
Islam, though he also records many opinions of high authority
that their beheading was disliked < [makruh ).* We have seen
that unanimity was reached among the Companions of the
1 For treatment of the daughter of Muqauqis, cf. MaqrizTy,
I. 297 ; (MS. Berlin) ; ULmi £>l
etc.
* 1,22 (l-P yi'f Ibn ‘Asakirt
^ ^ 151 \'A
3 These things fall under the discretionary powers of the commanders.
4 Do.
5 Kharaj, p. 121.
TREATMENT OF PRISONERS OF WAR
209
Prophet not to behead prisoners of war. 1 * In short,
capital punishment for prisoners of war is only permissible
in extreme cases of necessity and in the higher interests of
the State.
(b) Enslavement.
There is no verse in the Qur’an directly permitting en-
slavement, yet . some indirect mention is found in the
following :
O Prophet ! Lo ! We have made lawful unto thee thy
wives unto whom thou hast paid their bride-money, and
those whom thy right hand possesseth of those whom
God hath given thee as spoils of war (33 : 50).
In the practice of the Prophet, however, though few,
there are instances of it. The females and children of the
Jewish tribe of Banu-Quraizah were, by the decision of the
arbitrator nominated by themselves, enslaved and distributed
as booty. 3 This arbitral award was in conformity with the
Jewish personal law. 1 The captives of the Arab tribe of
Hawazin, in the year 8 H. were distributed among the
troops, but later on all of them were set free in answer to
the supplication of the HawSzinites after their conversion
to Islam. This manumission was not decreed as a right, but
the Muslim soldiers were prompted by the personal example
of the Prophet, and those who would not liberate their
share, were compensated by the state-treasury. 4 A little
earlier, the Arabian tribe of Banul-Musfaliq had also
incurred the same fate of losing females and children to the
Muslim army. This time the Prophet married a girl from
among the captives, who happened to be the daughter of the
1 Ibn-Rusljd, I, 351. (ed. Mustafa Babi Press).
* Ibn-Hishdm, p. 689.
* Deuteronomy, XX, 10-14.
1 Ibn-Hishdm, pp. 877-78, Tabarly and others in loco.
210
MUSLIM CONDUCT OF STATE
chieftain of the tribe, after liberating her. And the Muslim
soldiery was persuaded to free all the enslaved persons . 1
The prisoners of Banul-'Anbar were set free either gratui-
tously or on ransom.*
The policy of the Prophet reached a climax when, as is
said, he decreed that Arabs could not be enslaved ^ )
). 3 The Caliph ‘Umar issued orders that peasants,
artisans and professionals of belligerent countries should not
be enslaved . 4 The Qur’an exhorted liberation of slaves , 5 and
provided that the income of the Muslim state should partly
be allotted for the manumission of slaves . 6 Another verse 7
was interpreted by the Caliph ‘Umar 8 to mean that if a
Muslim slave wanted to work and thus pay off his value to
his master, the master was not in a position to refuse the
offer.
Thus it may be inferred that though Islam has done much
to minimize slavery, it has not abolished it altogether. Cer-
tainly it is not obligatory always to enslave prisoners of war,
yet it cannot be denied that the supreme commander of an
army has the choice to accord the prisoners either enslave-
ment or any other treatment. A word of caution may not
be out of place. Slave in Islam does not convey the same
idea as in other civilisations. For a slave of a Muslim has a
right to equality with his master in food, clothing and
dwelling. It cannot be denied that it was an easy method of
proselytising non-Muslims which is the prime policy of a
1 Ibn-Hishdm . p. 729.
* lbn-Hishdm , p. 983.
3 Mabsut of Sarakhsly, X, 118.
4 Kanzul-'UmmdU Vol. 2, p. 314.
5 Qur’an, 90: 13, 2:177 : freeing of slaves is an atonement of many an
offence for which cf . Qur’an, 4:92, 5 : 89, 58 : 3.
6 Qur’an, 9:60.
7 Qur’an, 24: 33. Qj***
* Shibll, al-Fdruq . citing Bukhariy.
TREATMENT OF PRISONERS OF WAR
211
Muslim state. 1
For treatment of and laws governing slaves in Islam, I
may refer to my monograph S;bl pub-
lished by the Law Union of the Osmania University, which
contains also a bibliography.
(c) Ransom.
The Qur’an . has legalised releasing prisoners of war on
ransom ( [cf . 47 : 4) and there are many instances in the life
of the Prophet of the liberating of them with various kinds
of ransom and compensation. So they were required some-
times to teach a number of Muslim boys calligraphy ; 2 3
sometimes money in gold or silver was demanded ; s some-
times other goods, for instance spears 4 5 and munition of war,
were accepted. It is not our concern whether the ransom
was paid by the prisoner from his private purse or he was
aided in it by his friends or government. The Caliph ‘Umar
II released full one hundred thousand prisoners and acquired
the city of Malatlyah from the Byzantines.*
1 la the archives of Pondicherry, that jSglr bestowed by the Nizam on
the French East India Co., there are still preserved the proceedings dis-
posing of the command of the emperor of France received to the effect
that all people in French possessions be forced to baptise their slaves
/
within a short time. 'Cf. No. 29, Edit du Roy donne k Versailles au mois
de Mars, 1724, art. 2 : “ Tons les esclaves seront jnstruits dans la religion
catholique apostolique et Romaine, et Baptises, ordonnons aux habitants
qui achepteront des negres de les faire jnstruire et Baptiser dans le temps
convenable a peine d’amende arbitraire. Enjoignons aux Directeurs
generaux de la Compagnie De Indeset & tous ses officiers d’y tenir exacte-
ment la main. 1 ' It is signed by Dupleix and others/
But Islam does not allow compulsion to convert even slaves to Islam.
3 Ibn-Sa‘d, 2/1, p. 14 ; Musnad of Ibn-Hanbal, I, 246-47.
3 lbn-Hishdm , p. 462, etc.
4 Ibn-Hajar, 1 sabah , No. 8336; Kattaniy, fUai, 38*
5 Abu-‘ Abdallah Muhammad-ibn-Sal5raah-ibn-Ja‘far.
5* (MS. Topkapusarai), fol. 77a.
212
MUSLIM CONDUCT OF STATE
(d) Exchange of Prisoners.
Of exchange, a special kind of ransom, there are many
instances in the life of the Prophet : sometimes one for one, 1
at others one for more. 3 In later times, it developed into a
complicated institution involving the release of thousands of
prisoners at a time. In certain treaties the value of the
ransom of prisoners was fixed in definite sum of money. 3
It is natural that vehicles employed for the purpose of
conveying exchangeable prisoners — cartels as they are called
— should be immune during their journey to and fro. 4 It is
also obvious that during the time of this immune journey
they should not take part in hostilities on pain of losing that
immunity.
(e) Gratuitous Release.
The Qur’an has recommended this when hostilities have
ceased ( cf . 47 : 4). There are not a few instances of it in
the life of the Prophet. From the battle of Badr until his
death, one comes across gratuitous releases of prisoners
every now and then. 3 There were also cases of release on
parole that they would no more take part in hostilities
against Muslims. 5 6
Before the booty — in which prisoners according to
Muslim law'are included — is distributed among the capturers,
the commander is free to deal with the prisoners as he
1 Tabariy, Hist., 1, 1345-46, 1862.
* Sahifi of Muslim, V. 150, ch. »ljJ
* Cf. supra a few pages above, in the beginning of this section citing
Finlay.
4 Cf. Sarakhsiy, III, 327-28:
5 Tabariy, Hist., 1, 1354, for instance.
* Cf. any biography of the Prophet, prisoners of Badr, etc., e.g., Ibn-
Hishdm, p. 471.
TREATMENT OF PRISONERS OF WAR
213
likes. 1 * But after they are enslaved and distributed, the
consent 3 of each recipient is necessary in all those acts of the
commander which affect adversely the possessory rights of
the owners of the now enslaved prisoners. The prisoners
of Haw5zin provide a good precedent, when the Prophet
allowed compensation from the public treasury to all those
who were not willing to part with their booty of slaves.
(Tabarly, Hist., 1675-79).
1 Mawardiy, op. cit„ p. 132.
* c r S», HI. 39.
CHAPTER XVI
Choice given to Inhabitants of Annexed Territory
EX-ENEMY subjects of occupied territory are expected to
remain peaceful, law-abiding and in no way hostile to the
conqueror. But they are not forced to become subjects of
the new state if their district or country is finally annexed ;
but they are given a year 1 in which to quit the territory or
become the subjects of the Muslim state, their new master.
It is not necessary to accept all the inhabitants as subjects ;
some of them might be expelled. The Caliph ‘Umar
deprived the Jews, the Greeks and the bandits (CjyaUl ^ f»J\)
of the choice of living in Jerusalem. 2
If they wished to become the subjects of the Muslim
state, they are required to pay the protection tax ( jizyah ) or
whatever might be agreed upon between them and their new
government. 3 After the act of naturalisation is executed,
they become ordinary subjects. For certain peculiarities of
non-Muslim subjects see supra , Part 2, Chapter 4, Section b.
1 Mawardiy, op, cit ., p. 132. * Tabariy, Hist., I, 2405-06.
3 For instance, the famous pact of the Caliph ‘Umar with Christians of
the tribe of Banu-Taghlib who resented the term jizyah, and agreed to pay
certain other taxes in increased ratio. Cf. Abu-YUsuf, etc. in loco .
CHAPTER XVII
Acts Permitted
NOW we will enumerate acts permitted by Muslim Law in
the actual conduct of war.
1. Enemy combatants might be killed, 1 * wounded, 3 pur-
sued 3 and made captive. 4 Non-combatants might be killed
in defence only and not otherwise. The jurists of the
Abbasid period made an exception regarding children,
women, and men incapable of fighting through old age or
otherwise— these might be killed, they say, 5 * if they are rulers,
commanders, or advisers in tactics and strategy, and it is
expected that their death would produce adverse effects on
the enemy. Sometimes the Qur’anic expression, “ then fight
with the ringleaders of Disbelief " s is also referred to for
support in this connexion. Kasanly explains :
And the principle therein is that all those who are
potentially capable of fighting, may be killed, no matter
whether they actually fight or not. And all those who
are potentially incapable of fighting must not be killed
except when they fight actually or potentially, such as by
means of opinion, influence, inciting and the like. 7
2. Recourse might be had to ruses. 8 The Prophet is
1 Qur’Sn, 47:4,8:12.' * Ibid.
* Qur’an, 4 : 104, 3 : 172. 4 Qur’an, 47 : 4, 8 : 12.
8 Sarakhsiv. Sharh as-Sivar al-Kabir, I, 34 ; cf. also supra “Acts
Forbidden,” No. 2.
• Qur’an, 9: 12.
7 Bada'i' of Kasanly, VII, 101.
8 BukhSriy, 55:157; Muslim, V, 143 : Sarakhsiy, _**£)! juJI _ Ju,
1,83-86.
216
MUSLIM CONDUCT OF STATE
reported in his warlike expeditions generally to have given
currency to apparently misleading things ( l 1 using am-
biguous expressions 2 and the like to consternate the enemy.
“ War is a ruse ” ( ) s is a famous dictum in
Muslim military literature which is also attributed to the
Prophet.
2a. Propaganda may require a separate treatment. There
are cases in the time of the Prophet when secret agents
were sent who sowed discord between the different sections
of the enemy and his allied, 4 5 and who disseminated false
news in order to discourage the enemy, 3 or to extract some
other benefit from the enemy. 6 Once a famine was afflict-
ing Mecca, and the Prophet sent a handsome contribution
of five hundred gold coins towards the relief work. The
Meccan magnates, though they dared not refuse and return
the contribution, at once discerned in it a powerful weapon
“ to win the affection of the youngsters of Mecca ”
( UiUia jwij £>l ^>1 ± 4 - ). 7 The famous verse of
the Qur’an on the Islamic budget 8 also allots a portion of
the income for propaganda ( ^ ). According to
Abu-Ya’lS al-Farra‘, this Quranic term includes four
categories :
1. Those whose hearts are to be won to aid Muslims.
2. To persuade them to abstain from doing harm to
Muslims.
3. To induce them to embrace Islam.
1 Ibn-Hiskdm , p. 894.
* Tabariy, Hist., I, 1302-03.
3 Sarakhsly, ^ I, 83.
4 Ibn-Hishdm , 683-84.
5 Ibn-Hajar, lsdbah, No. 3074.
• Tabariy, Hist., I, 1586.
7 Sarakhsiy, ^ jic, I, 69.
3 Qur’an, 9 : 60. cf. my article in AJixv* Hyderabad, Rabi‘ I,
1357 H. "
ACTS PERMITTED
217
4. To give inducement to others through them. 1
Of course most of them will be non-Muslims, and our author
has also recognised it explicitly.
3. The enemy might be attacked with all kinds of
weapons. 9 In this matter ships and forts were regarded as
the same. 9 Of course unnecessary bloodshed is to be
avoided. In the time of the Prophet, one comes across
superior strategy and better tactics in the Muslim army as
also new formations, new methods of defence. Ditch
warfare was not known in Ijhjaz before the Prophet. The
element of surprise was also included as much as possible,
which diminished bloodshed and procured easy surrender.*
The Caliph Mu'awiyah used incendiary materials ( OlS )
in his marine expeditions. 9 S. P. Scot records that the
Muslims of Spain used in the seventh century of Hijrah
what might be considered a crude form of cannon. 6 During
the Crusades the Muslims used a kind of marine mine. 7
During the same time, Salahuddln managed to send his ships
1 Abu-Ya‘la al-FarrU\ al-Ahkdm as-Sultariiyah , p. 116 (cd. Egypt, 1357 H.)
*Qur’Sn, 8:60 (8^5 Lsil U U*x»U) t Sarafchsiy,
jJLa&JI juJI ^ 212 :
^ I jlxJb ^ ^*b M
j *L%Jl lyjA ^ \yyckij j A*Jb
cf. on the contrary the opinion of the Malikite Khalil, that poisoned
arrows are forbidden, supra , “Acts Forbidden,” No. 18.
3 Sarakhsiy, jijS. Jl ^wJ\ c jiit, III, 265.
4 Cf. Revue des Etudes Islamiques , 1939 ; Les champs de bataille au temps
duProph&te; A&l* OUuJbtO Osmania University, Vol. VII,
^IwX^o , 3^-0 both by me.
s Jl c HI, 213.
6 History of Moorish Empire in Europe , III, 634 ( anno . 1249 of Chr. era).
7 Lawrence, Principles of International Law , p. 511.
218
MUSLIM CONDUCT OF STATE
to ports besieged by Christians by placing pigs on the deck
and clothing the sailors in Christian dress. 1 An author of at
least several hundred years ago mentions even poison gases.
He says :
tjiJ JU sUJLl; jJIj sjjll j, Ul 5
JiUil 5 AJaUJI iiULU
As for acts of belligerency in war, like fires, smokes,
prepared liquids, and ill-smelling deadly odours (? gases),
for causing damage to forts and castles and horrifying
the enemy, they are permitted. 3
The name of the author is not known ; the manuscript was
copied in 1231 H. Various formulae for the preparation of
poison gases are given in another old MS. in Arabic^
Attacks with smoke are mentioned and upheld by such an
old author as Burhanuddln al-MarghlnSnly (d. 616). 4 Ash-
Shaibaniy allows surprise attacks, burning forts and flood-
ing them with water. 1 Instruments for producing terrifying
and shrill sounds as a consternater were resorted to by Arabs
and other Muslim peoples. 6
4. Assassination : It is allowed in Muslim law, and may
perhaps be justified on the ground that often it diminishes
greater bloodshed and discord, and it is resorted to as the
lesser of two evils. In the life of the Prophet there are
several clear instances of it. The expeditions dispatched by
1 Kamil of Ibn al-Athlr. XII. 34; lbn-Shaddad : j ■> l^xll
, p. 178.
* ij, dJLutj , MS. Cairo, Fiqfa
Hanafiy, No. 1080, ch. 27. *
* , MS. Hamidie, Istanbul, No. 189, pp. 308-17.
4 *j SU, a r JI » Vol. Ill, ch. 23. (MS. Yani JSmi\ Istanbul).
* Shaibaniv. A si, ch. vJjJ.1 J-*' (3 lj» » (MS. Aya
Sofia, Istanbul!.
* Cf. Islamic Culture, April 1941 : ‘A Note on Noise as a Consternater
in Islamic Armies." pp. 240ff.
ACTS PERMITTED
219
him against Abul-Huqaiq, 1 Ka‘b-ibn-al-Ashraf, 2 * AbQ-Rafl‘ s
and Sufygn-ibn-Anas 4 were successful, and the one against
Abu-Sufyan 5 failed to achieve the desired aim.
5. Instances of night attacks, too, are not lacking in the
history of the time of the Prophet. Muslim historians have
recorded even the very watchwords used on these occasions. 6
On one such occasion two parties of the Muslims came
into clash with each other by mistake, and some blood was
shed before it was discovered. The Prophet agreed that it
was by mistake, and it was left unpunished. 7
6. In a previous chapter it was stated what kind of
people might not be killed except in self-defence. In the
confusion of a night attack, or when catapults or other war
machines cause damage from an invisible distance, the un-
intentional killing of such non-combatants is exempt from
punishment ; but soldiers must be warned not to aim at
them. 8
7. It is necessary sometimes, in sieges for instance, that
an enemy should be fired at from a distance. Often in
besieged places are found not only non-combatants but also
neutrals and even Muslim subjects such as tourists or
prisoners, etc. 9 Again, sometimes, the enemy takes shelter
behind women, children or even Muslim prisoners. In all
such cases Muslim soldiers are enjoined simply not to aim at
1 Tabariy, Hist., 1, 1379.
* Ibid, p. 1372 ; Bukhariv. 54:15.
* Tabariy, I, 1375-76 ; Bukhariv. 54 : 16.
4 Sarakhsiy, » I. 79.
* Tabarly Ikhtildf al-Fuqahd', fol. 186. (MS. Istanbul), lbn-Sa‘d, 2/1, p.68;
lbn-Hiskdm, p. 994.
4 Ibn-Sa'd, 2/1, p. 17, Musnad of Ibn-Hanbal, IV, 65, Mawardiy, p. 60.
7 Muhit Burhdniy, ch. 23 ; cf. infra ch. XXVI, 5.
* Sarakhsiy, x ~~i\ HI. 213, Bukhariy, 54 : 146.
* Muhit of Radiuddin Sarakhsiy, I, 569, citing a case from the time of
the Prophet.
220
MUSLIM CONDUCT OF STATE
the non-combatants and non-belligerents. 1
8. Enemy property may be destroyed or captured. This
will be discussed in a separate chapter.
9. The water-supply of the enemy may be cut off or in
some other way may be made unusable 1 for them. The
Prophet cut it off from the enemy during the battles of
Badr 1 and Khaibar 4 with great effect.
10. Food and fodder may be obtained from an enemy
country. 1 There are indications to the effect that the
Muslim armies sent by the Prophet used to pay for what
they obtained wherever practicable. So Tirmidhiy records :
1x5 5 UJjLIj of !>?' o'
. Ujb dol («®>) «y>UaiU
Translation : — “The meaning of the Hadlth is that they
used to go in military expeditions and pass by people
who would not sell them the requisites for cash. It was
for this that the Prophet said : If they decline to sell
and will not surrender except by force, then use force...
It is related of ‘Umar that he used to give similar
instructions.* ”
On the other hand, there are also indications of food and
1 Sarakhsly. ^ III, 216, AbU-Ya*Ia, AxilhLuJl
fol. 25 a, b.
* Cf. No. 3 above, note 2. * Ibn-Hisham, pp. 439-40.
4 Sarakhsly, jJU-JI cr Si , HI, 213.
* DInawarly, JlyUl , p. 120: —
fl*UL ^ tj— *
* Tirmidhiy, 1, 301. ed. Bulaq.
ACTS PERMITTED
221
fodder being obtained by what is termed requisition. 1 * Un-
like other captures, food and fodder are nht considered
booty, i.e.y not shared by the Government nor divided
among the whole army, but the catpor becomes the sole
owner. 8
11. Individuals or localities may collectively be fined or
otherwise punished for indiscipline or hostility to the
occupying forces.
These are but a few cases recording law and practice. It
is very difficult to give a comprehensive list of what acts are
permitted. The general principle may help to a great extent
that everything not prohibited is permissible J-o'Jl). 3
1 Dina war ly, JljkJI 9 p. 120. More, infra , under chapter
“ Private Property.”
**199
• Cf. any law book, ch. Booty. For instance, Ibn-Rushd, '
“ in loco , cites the Practice of the time of the Prophet.
3 Cf . supra , Part I, Ch. VI. §10.
CHAPTER XVIII
Spies
IN olden times spies could not have done so much harm to
the other side as in modern times when spying has developed
from an art into a veritable science. Nevertheless elaborate
precautions were taken even in olden times to hide news
from the enemy. The Prophet sometimes closed all roads to
private persons 1 ( j**^»*) in order to prevent infiltration
of news of military importance.
Practically no distinction is made in Muslim law between
spies of war and spies of peace. All those persons who
obtain or attempt to obtain information useful to an enemy,
and try to transmit it to the enemy, are considered as spies.
Even a Muslim subject may play that mean role and incur
the same punishment as an alien.
Naturally less formality is observed regarding aliens
suspected of fifth column activities. Two cases of the time
of the Prophet may be noted with interest.
(a) The treaty of Hudaiblyah became invalid owing to
its being violated by the Meccans. Great preparations were
secretly undertaken to avenge the infraction of the treaty.
A Muslim of old standing, Hafib-ibn-Abi-Balta‘ah guessed
where these preparations were directed. He wrote a letter
to his friends in Mecca to the effect that preparations were
ahead and that might be they were directed against Mecca,
so Meccans should take precautions. He intended thereby
a better treatment of his private property situate in Mecca.
1 AbU-Ynsuf, KharSj, p. 131.
SPIES
223
The letter was intercepted, and when the Prophet was
satisfied that neither was the letter motivated by ill-will
to Islam nor had it done any harm, he pardoned Qatib in
view of his long meritorious services, including his taking
part in the battle of Badr. 1 *
(6) Al- Bukhari v quotes a few details of an incident .in
which the Prophet, during a certain expedition, ordered a
suspected spy to be pursued and captured, who was later
beheaded. 1 We do not know what opportunity was given
him to plead or how he came to be suspected.
Abu-Yusuf is of opinion that non-Muslim spies, no
matter whether subjects or aliens, must be given capital
punishment, and those who profess Islam might be imprison-
ed or physically tortured.* His contemporary ash-Shaibanly
regards espionage as less harmful than robbery, and so he
thinks that subjects of the Muslim state may not be be-
headed for espionage. Regarding aliens, however, he too
has no mercy. 4 *
No distinction is made, as far as punishment is concerned,
between a male and a female spy. 3 Yet a minor should on
no account be made to suffer the supreme penalty, say
Muslim jurists. 6
1 Ibn-Hishdm, p. 810, Sarakhsiy, > IV, 226.
* Bukharly, 56 : 173.
* AbH-Yusuf, Kharaj, p. 117.
« Cf. f . IV, 226-27.
* Sarakhstv. ' *V. 226-27.
* Ibid.
CHAPTER XIX
Uniforms
VARIOUS devices have been made to distinguish friend from
foe during the frenzy of a battle. Its purpose is twofold-
comfort and distinctiveness.
The Prophet is reported to have worn during military
marches, special cloaks . 1 * * There is also mention of prominent
warriors wearing distinctive costumes during a battle . 8 Yet
there is no evidence of any organised attempt in the time of
the Prophet to provide all the members of the expedition
with uniforms, except that he is reported to have ordered on
the day of Badr that Muslims should wear distinctive signs,
adding that the angels who came on that day to the help of
the Muslims also wore such signs . 1 A (sort of woollen
crest ?) is said to have been adopted by Muslims on that
occasion . 4 * * The life of the Prophet shows that he had an
ingenius device which served both during night and day. He
instructed watchwords for each campaign, and during a
combat the cries of the watchword could fairly easily dis-
tinguish friend from foe . 1
Greater uniformity of dress is reported in the time of the
1 Bukhariv. 54 : 90.
* Tabariy, Hist., I, p. 1393, ll, 14-15 ; Ibn-Hishdm, p. 448, etc.
' Tabariy, Tafsir, IV, 54, commenting on the verse 3 : 125.
1 Ibid, JjO.
* Musnad of Ibn-Hanbal, IV, 289, also my i 'Mr* J
Ibn-Sa'd, 2/1, p. 17.
UNIFORMS
225
Caliph ‘Ally . 1 The Abbasid Mu'tasim and Mutawakkil are
reported to have raised uniformly dressed armies.*
1 Mas*3diy, Muruj % IV, 309ff. (ed. Europe).
* Ameer ‘All, A Short Hist . of the Saracens , p. 431 (ed. 1921) : “ all
regulars were given light brown cloaks/'
CHAPTER XX
Flags of T ruce
THE sign of surrender in ancient times seems to have been
mere holding-up of hands and laying-down of arms. In the
time of the Caliph 'Ally we come across the expression
"flag of truce. 1,1 But the technical branch of Muslim
military science has not yet been thoroughly studied. 1 * 3
Mention may also be made here of the raising of the
copies of the Qur an by the troops of Mu'awiyah in the
battle of §iffin on which the opposing army held up their
arms. 3
* * *
So far we have dealt with enemy persons. In the follow-
ing we propose to discuss enemy property as affected by
war.
1 Ynsuf-ibn- Muhammad al-Andalusiy, <3 l
fVudYl, fol. 14a, b,
* See, however, Fries, Heerwesen der Araber zur Zeit der Umaijaden, Kiel,
1920 ; Wiistenfeld, Heeru/esen der Muhammedaner, Gottingen, 1880 ; Ency-
clopsedia of Islam, s.v. TabalkhXna, etc. ; Lord Munster : <—*££11
o' '-** 7 * > lithographed 1840 ; a copy also in the Hyder-
abad State Library which reads a very interesting and descriptive
catalogue.
* Tabariy, Hist. I, 3352-53.
CHAPTER XXI
Enemy Property
Preliminary Remarks.
PROPERTY may be movable or immovable. It may be owned
by private individuals, or by the State. Even if it is un-
owned by anybody, yet the very fact of its situation within
the territorial jurisdiction of a State renders it as belonging
to that State. In a broad sense, all the land within the
territory of a State, be it owned by private individuals or by
the government itself, is supposed to be the property of the
State. For, foreign aggression against the property of a
private citizen in a State is as much an insult to the State as
one committed against the property owned by the State.
The notion is based on the idea that the world and all that
is therein is God’s , 1 and He bequeaths it to whomever He
pleases ; 2 and that the ruler of a country functions as an
agent of God in that part of the world . 3 Hence the legal
dictum that all the parts of a Muslim territory lie under the
authority of the Muslim ruler at
crt*A**W fUl ). 4 There is a tradition of the Prophet :
OVj om <3®. y* ncwJ j AJ
i.e. t The l Adite land belongs to God and to His
Messenger. And thereafter does it to you. So whoever
colonises a derelict land, it will be his. Yet no one has
1 Qur’an, 7 : 128.
» Qur’an, 38 : 26, 6 : 165.
* Ibid.
4 Mabsut of Sarakhsiy, ,X, 93.
228
MUSLIM CONDUCT OF STATE
a right to an enclosure after three years [if he has not
developed it ]. 1 *
A commentator says :
>U “^>U •' JU ii
£>£ U ILfA J *!r“‘
«• UUU aJ -*iU« ^ cj ^LmiYI
Translation : An old thing is called 'Adite, attributed
to the people of ‘Ad* on account of the remote antiquity
of their time, no matter whether it really belonged to
them or not. Here it means a piece of land which was
unowned in the time before Islam, that is, situate in
place which had no owner . 1
Discussing the implications of this tradition, Qudamah-
ibn-Ja'far says :
j» L » u lilL. jij jJL J
i.e„ To resume the matter, all that is owned neither by
a Muslim nor a friendly foreigner, will be at the disposal
of the ruler who may enfeoff it to whomever he pleases . 3
It is to be noted that not all the property of a State is
always to be found on its own territory, and not an incon-
siderable extent may lie in other countries. Property
belonging to embassies, to citizens temporarily residing or
trading abroad, also debts and trusts, are examples thereof.
The general principle guiding Muslim law in the treatment
of property belonging to an enemy has been explained thus :
The principle is that all property capable of being
1 Khardi of AbH-YiXsuf, p. 37 ; Khardi of QudSmah-ibn-Ja‘far, part 7,
chapter 5 (MS. Koprulu, Istanbul).
1 glyU g y~» by ‘Abdal-'Aziz-bin-Mul^ammed
ar-Rahably, fol. 73 a (MS. LAleli No. 1609. Istanbul).
* Op. cit., part 7. ch. 6 (MS. Istanbul).
ENEMY PROPERTY
229
transferred from one ownership to another may be made
booty, not otherwise. For, possession by means of
occupation is just like possession by means of the other
methods which effect ownership. Thus whatever may
be owned by virtue of other methods, may pre-eminently
be so by means of occupation. 1
The different kinds of property described above are
treated in different manners, as under :
2. State Property.
It may either be movable or immovable, and it may
either fall under the general exchequer or be reserved for
the royal household. For its special importance, we begin
with the territory of an enemy state.
(i) Territory . — By conquest and occupation of a territory,
the sovereignty thereof — with the obligation of protection
and right of allegiance — is transferred to the conqueror.
The occupation, whether permanent or strategical and
temporary, gives the occupant the right of taxing, adminis-
tering and otherwise treating the occupied land as a part of
his dominions.
The question of how to treat conquered territory came
in for sharp discussion and disputation very early in Islam.
The practice of the Prophet had apparently left the matter
undecided. For he had sometimes distributed the conquered
land among the victorious army as booty, and at others he
had not only allowed the freedom of the vanquished but
even did not touch their property. The question requires
closer scrutiny before recording the final settlement of the
dispute in the time of the Caliph ‘Umar.
So far as I have been able to ascertain, the case of the
distribution of conquered lands by the Prophet among his
1 Mu^it by Radiy-ud-din-as-SarakhsIy, I, 5996 (MS. WalXuddin, Istan-
bul).
230
MUSLIM CONDUCT OF STATE
soldiers are only those of BanO-an-Nadlr and Banu-
Quraizah. Both these Jewish tribes of Madlnah had fought
against the Prophet and capitulated after a siege. The
Qur’an enjoins the administering of personal laws to Jews
and Christians . 1 * * It may be that the Prophet was paying
these Jews in their own coin . 1 For the Bible commanded : —
When thou comest nigh unto a city to fight against it,
then proclaim peace unto it. And it shall be, if it make
thee answer of peace, and open unto thee, then it shall be,
that all the people that is found therein shall be tri-
butaries unto thee, and they shall serve thee. And if it
will make no peace with thee, but will make war against
thee, then thou shalt besiege it. And when the Lord thy
God hath delivered it into thine hands, thou shalt smite
every male thereof with the edge of the sword. But the
women and the little ones and the cattle, and all that is
in the city, even all the spoil thereof, shalt thou take unto
thyself ; and thou shalt eat the spoil of thine enemies,
which the Lord thy God hath given thee. ( [Deut . XX,
10 - 14 ).
In the case of the Banu-an-Nadir, the Prophet was
content only to expel them, and allowed each person to take
with him a camel-load of property.* In the case of the
BanG-Quraiza, it was the arbitrator of their own choice who
awarded exactly what Deutronomy provided . 4 Upon hearing
of the decision of the arbitrator, the Prophet made only the
comment that God had predestined that from above the
seven heavens . 1
1 Qur’an, 5 : 44-48. cf. supra , part II, ch. iv. section “ Persons ”, b.
* On hearing the award of the arbitrator, the Prophet is reported to
have remarked ; tXiul
(Tabarly, p. 1493 — Ibn-Sa'd , 1/2, p. 54).
• lbn-Hisham % p. 653 ; Hist . of Tabarly, p. 1451 ; Ibn-Sa'd , 1/2, p. 41.
4 Deuteronomy, xx/ 5-14.
ENEMY PROPERTY
231
Expulsion was also imposed upon the Jews of Khaihar
after they had fought and eventually surrendered ; but later
the Prophet agreed to let them stay on the land and work as
lessees until further orders . 1 These orders were not issued
before the time of the Caliph ’Umar, who, in accordance
with a will of the Prophet upon his death-bed,* transported
them along with other undesirable elements from Arabia to
Mesopotamia. 1 . The Jews of Fadak and WSdl’l-QurS also
agreed to the same conditions of lease as those of Khaibar.*
Regarding non-Jews, surrendering after fight, the follow-
ing state-document is of interest : —
In the name of God, the Compassionate, the Merciful.
This is a rescript of Muframmad, the Messenger of God,
in favour of Ukaidir at the time of his embracing Islam
and forsaking the false gods and the idols before Com-
mander KhSlid-ibn-al-Walid. the Sword of God, regard-
ing Dumatuljandal and its environs.
To us all the lands not rich in water, and not having
enclosures, the uncultivable and the neglected as also the
coats of arms, the armour, the solidungular animals, and
the fort.
To you the walled palm-groves and the water in culti-
vated lands.
Your beasts will not be prevented from obtaining
pasture. Fractions will not be counted in the calcula-
tion of taxes. Pastures will not be closed against you.
You will observe the daily religious services and pay the
zakat-tax.
You engage God as your guarantee. In return you
will be assured of bona fides and scrupulous observance . 1
1 Ibn-Hisham, p. 764 ; AbH-Yusuf, , p. 29.
* Ibn-Hisham, p. 1021 ; and others. * Ibn-Sa'd, 1/2, p. 83.
4 Ibn-Hisham , p. 764 ; futuh o Baladhuriv. pp. 33-35.
* AbU-'Ubaid, Jt^l . § 508 ; Ibn-Sa'd , 2/1, p. 36 ; BalSdhuriy.
p. 61.
232
MUSLIM CONDUCT OF STATE
The confiscation of all unowned land as well as the fort
in favour of the State, and the maintenance of all private
owners on their property were terms imposed upon van-
quished people whose expulsion was not desirable.
The same seems to be the practice even regarding
territories surrendering without fight. For we come across
scores of enfeoffments in the time of the Prophet regarding
lands situate in different parts of Arabia and Palestine in
favour of people rendering useful services to the Muslim
State, in spite of the fact that these places had peacefully
been won over to Islam. In the documents concerning
some such donations of lands, we come across the charac-
teristic phrase “ provided the land concerned is not owned
by any Muslim citizen.” 1
Soon after the time of the Prophet, when the fertile
lands of ‘Iraq and Syria were occupied by Muslim armies,
the soldiers clamoured for the distribution among them of
the booty, in which they included lands, in accordance with
the Muslim law of war-booty. The matter was referred to
the metropolis of Madlnah where long deliberations ensued.
The decision reached was communicated to the commanders
of respective armies. Abvi-Yusuf has described the proceed-
ings at considerable length and recorded the despatches
addressed to the commanders of ‘Iraqi and Syrian armies*
The translation of the latter document will suffice for our
purposes :
AbQ-‘Ubaidah wrote informing ‘Umar of the defeat of
the non-Muslims, of the spoil which God had given the
Muslims, of the terms of peace which the peoples of the
conquered countries had offered, and of the request of
the Muslims to distribute among them as war-booty the
* Cf. Ibn-Sa'd, 2/1, p. 45 ; Abu-Dawud, II, 32 ; etc.
* Abn-YCsuf, pp. 13-15. 81-82.
EVERY PROPERTY
233
cities and its inhabitants and lands with their trees and
cultivation, adding that he had refused to do so until he
had written to him and asked for his opinion.
‘Umar replied : Read what you mentioned of the spoils
which God has given you and the terms on which you
have made peace with the people of towns and cities. I
consulted therein the Companions of the Prophet, who
differed among themselves. My opinion follows the Book
of God, Who has said :
“ And that which God gave as spoil unto His
messenger from them, ye urged not any horse or
riding camel for the sake thereof, but God giveth His
messenger lordship over whom He will. God is
Able to do all things. That which God giveth as
spoil unto His messenger from the people of town-
ships, it is for God and His messenger and for the
near kin and the orphans and the needy and the way-
farer, that it circulate not between [only] the rich
among you. And whatever the messenger giveth
you, take it, and whatsoever he forbiddeth, abstain
from it. And keep your duty to God. Lo ! God is
stern in reprisal.
“ And [this spoil] is for the poor fugitives who
have been driven out from their homes and their
belongings, who seek bounty from God, and help
God and His messenger. They are the loyal ." 1
This refers to the early Meccan refugees. Further :
“ And for those remaining in [their] homeland and .
in their faith before them, who love those who flee
unto them for refuge and find in their breasts no
need for that which hath been given them, but prefer
[the refugees] above themselves though poverty be-
1 Qur’an ch. 59, verses 6-8.
234
MUSLIM CONDUCT OF STATE
come their lot. And whoso is saved from his own
avarice — such are they who are successful." 1 *
Surely these are the Ansar (i.e., Madlnite Helpers).
Moreover :
“ And for those who come [into the faith] after
them." 8 These are the sons of Adam, white and black ;
and God has included them among the recipients of these
spoils down to the Last Day.
So let what God has given you as spoil remain in the
hands of its [original] owners, yet impose the protection-
tax upon them according to their capacity, which you
shall distribute among the Muslims, and which will be a
source of the prosperity of the country. For they know
it better, and master [its exploitation] in a pre-eminent
degree. In no way can you or the Muslims who are
with you make them part of the spoil and distribute
them, since you have made peace with them and taken
protection-tax from them in proportion to their capacity.
And m fact God has explained this for us and for you,
and mentioned in His Book :
“ Fight against such of those as have been given
the Scripture, who believe not in God nor the Last
Day, and forbid not that which God and His
messenger have forbidden, and follow not the reli-
gion of truth until they pay the protection-tax
( jizyah ) according to [their] capacity being brought
low." 1
As soon as you have taken protection-tax from them,
you have no way and no recourse against them. Tell me,
if we capture their people and distribute them, what
will remain for the Muslims who will come after us ?
1 Qur’an, ch. 59, verse 9.
3 Ibid., 9 : 29.
2 Ibid., verse 10.
EVERY PROPERTY
235
By God ! they will not find anybody to talk to nor any-
thing to take advantage of. On the other hand [if we
do not enslave the vanquished people], they will provide
subsistence for the Muslims as long as they live ; and,
when we die and also they, our sons will eat out of their
sons as long as they live. They are the slaves of all the
followers of the religion of Islam so long as the religion
of Islam triumphs.
Therefore impose upon them the protection-tax and do
not enslave them, and prevent the Muslims from oppress-
ing them and doing them harm and appropriating their
belongings except in the rightful way, and execute to the
full the terms pf peace that you have given them.
And as for the procession of the cross in their feasts,
do not prevent them therefrom outside the city, if it
is without banners and standards, once a year, as they
have requested you. As for the inside of the city be-
twixt the Muslims and their mosques, no crosses should
appear. 1
From that time on there is practically no instance of
practice to the contrary, although the Muslim jurists assert
in theory that the choice is still left with the Muslim ruler,
in case of new conquests of land, to distribute it as booty or
to preserve it as State property, the income from which to
be spent for the welfare of the whole community.* There
is, however, no difference of opinion that whenever any
terms are accepted by the Muslims, they must be fulfilled in
good faith.*
(tf) Sacred Lands . — There is one more peculiarity in the
treatment of conquered land. Non-Muslims must be trans-
ported from Arabia where they cannot settle.
i Kharaj of Abu- Yusuf, pp. 81-82. * Idem, pp. 35-36.
* Idem, p. 35.
236
MUSLIM CONDUCT OF STATE
( b ) Crown Lands .— Muslim jurists and historians men-
tion that the Caliph 'Umar treated ten kinds of Iranian
lands as crown lands, viz., lands belonging to the ex-ruler or
his household, lands of those who fell in battle and so be-
came ownerless, lands of those who fled from the country
and did not return, lands connected with postal stations,
forests and the like. 1
(c) Condominium . — Some complication may arise regard-
ing lands owned jointly by two States one of them remaining
neutral. 2 Yet no belligerent will treat land as neutral if it is
placed at the disposal of belligerent joint-owners for purposes
of military importance, such as transit of troops, equipping
and repairing of armaments and the like. Mere declaration
of neutrality would be of no avail if either of the bellige-
rents did not recognize this protestation not borne out by
deeds.
(«) Equipment of the Army . — In the war-zone no dis-
tinction is made of private or State property as far as war
material is concerned. Men and munitions both have to
bear the brunt of the war in the form of capture, destruction
and damage. We have already dealt with the question of
prisoners of war. The question of the distribution of
booty will be treated in a subsequent section of this chapter.
2. Private Property.
There is no difference in the actual war-zone between
1 Khardi of A bU- YUsuf, p. 32; Kharaj of Yahy5-ibn-Adam, p. 45 fed.
Brill); Khardi of Qudamah-ibn-Ja‘far, part 7, ch. 6 (MS. Istanbul) ; Hist.
of Tabariy, p. 2371. Cf. also MSwardfy and Baladhuriy, etc. in loco.
1 Cf. supra part 2, ch 3, for various historical instances of joint rule.
Reference may also be made to the prayer of Moses for the appointment
of a sharer of his office (Qur’an, 20:32. Among
contemporary Muslim states. Sudan is a condominium of Egypt and
Britain, and Berar is a corregnum between Hyderabad and Britain (i.e.,
single sovereignty and joint administration).
DISTRIBUTION OF BOOTY
237
the property belonging to the enemy State and between the
one belonging to private individuals. If a city or fort is
stormed, much depends upon the terms of the surrender. In
Kbaibar the Prophet obtained the condition that the
vanquished enemy would surrender everything except the
clothes they actually wore — though later he forsook this
right as a sign of generosity. Enemy is chased and subdued,
but general and indiscriminate plunder of captured towns is
nowhere recorded in orthodox practice.
3. Distribution of Booty.
The history of Muslim law on the point is interesting.
When the Muslims were chased from their Meccan home,
and they founded a City-State in their refuge of Madinah,
they had no laws to follow regarding booty. Generally in
such cases the Prophet followed the practice of the Scrip-
tuaries. So when Ibn-Jahsh went on an expedition 1 * just
before the battle of Badr, he took the initiative of allotting
one-fifth of the booty to the State and distributed the other
four-fifths among the soldiers. 1 The Prophet did not accept
the booty and chid the party for fighting without bis per-
mission. Three months later, the battle of Badr saw scores
of enemy prisoners. The Prophet’s council was divided
between those who advised the decapitation of the prisoners
and those who suggested release on payment of ransom. The
Prophet was moved with pity and accepted the latter view.*
And regarding general booty, the Prophet used complete
discretion. 3 It was not until some time later that a law was
fix ed by the Qur’in that the booty captured after a fight
should be divided between the members of the army and the
1 Ibn-Sa'd. 1/2, p. 5 ; Hist, of Jabarly, p. 1275f.
» Hist, of Tabariy, p. 1356; Ibn-Sa'd. 1/2, p. 14.
* Ibid., p. 1334.
238
MUSLIM CONDUCT OF STATE
State in a ratio of 4/5 and 1/5, 1 a horseman getting double 2 *
the share of an infantryman; without any distinction between
the shares of the commander and the private. As for the
booty acquired without fight, the whole went to the general
exchequer and lay at the discretion of the head of the
State.* This kind of booty is technically called Fai' as
distinguished from Ghanlmah or despoliation by force.
If a place is not stormed but has surrendered peacefully,
all that the Muslim government acquires under treaty is in-
cluded in Fai’. Recurrent tribute, non-recurrent payments
under treaty, ownerless property found in enemy country
but not captured during the actual fight — these are other
examples thereof. 4 The people of Fadak got frightened at
the fate of ]£haibar, and begged peace of the Prophet on the
same conditions as applied to the conquered people of
Khaibar. The spoils found in Khaibar were treated as
Ghanimah, but those of Fadak were considered as Fai' ; and
were disposed of by the Prophet at his discretion, for the
same reason.
Both Gbanimah and Fai’ may include not only cattles or
movable property but also real or immovable property, and
also slaves.
We have already discussed Muslim law on the question
of lands and prisoners of war. If a slave is taken captive and
is not repatriated on ransom or exchange basis or even
gratis, then he is disposed of in the ordinary way. In order
to overcome the difficulties of fraction, slaves are usually
sold in auction, and the proceeds distributed among the
1 Qur'an, 8 : 41.
* In fact the practice of the Prophet is reported (Cf. Kharai of Abn-
Yusuf, p. 11) to have varied between a double and treble share for horse*
men. The divergence in the practice may have been due to the impor-
tance of cavalry in individual battles in plains as against mountainous
terrains.
* KasSniy, VII, 116.
4 Ibid.
DISTRIBUTION OF BOOTY
239
capturing army and the Muslim state in the ordinary propor-
tion of four to one.
Booty is to be distributed in the Islamic territory, which
includes the newly conquered place if it is formally annexed
to the Muslim territory even during the course of the war.
Muslim jurists describe Badr as simply a place where victory
was won over the enemy, but the place was not annexed.'
On the other hand, they say that Khaibar and the country of
Banu-al-Mustaliq were annexed as soon as these places were
conquered by the Prophet.' That is why the booty of Badr
and Hunain and other places not till then annexed to the
Islamic territory, was not distributed in those places ; and it
was distributed on the spot in case of Khaibar, etc.
As said, four-fifths of the booty are allotted as the prize
of the capturing army. There is no distinction between a
volunteer and a regular paid soldier, or between a private
and an officer, even the commander-in-chief — all receive the
same share.' Yet infantrymen get half — and according to
some only a third— of the share of the cavalry . 1 * * 4 The
followers of the army, however, who do not fight usually,
such as contractors, traders and the like — do not share the
booty unless they fight . 5 There is no distinction, however,
between those who actually fought and those who were not
required to fight, although they could have fought had it
been found necessary, such as those who occupy strategic
positions, guards, etc. In the battle of Badr, the Prophet
1 Kasaniy Bada\ VII, 121. _ * Ibid.
* Asl of Shaibinlv. Vol. IV, ch- a J I, and also ch. Zakat. I-*-*
j Aii ; Faiam 'Alamgiriyah, ch. Booty,
p. 238; Hist, of Tabariy, p. 1362, quoting a precedent of the time of the
Prophet.
* Ibn-Rushd, , I, 318*19 ; Abu- Yusuf, pp. 10-11. cf. also
supra, first paragraph of his this section, and note thereof.
* Ibn-Rushd, op. cit, I, 316-17.
240
MUSLIM CONDUCT OF STATE
allowed eight persons to share in the booty in spite of their
absence from war-zone. They were employed by the com-
mander for special duties, such as scouting, etc . 1 Women,
slaves, minors, non-Muslims, though given a gift for
their meritorious work, cannot have equal shares along with
Muslim grown-up soldiers. An exception is, however, made
regarding non-Muslim soldiers when they form in themselves
a formidable force ( ), or without whom the rest of
the Muslim army would not be strong enough ; then they
also share equally with the Muslim soldiers . 2
Apart from the regular four-fifths of the booty, the
soldiers get two more kinds of rewards or prize for their
exertion, viz., tanfil and salab, which we shall now deal.
(t) By tanfil in Muslim law, we understand a prize-gift
given to a soldier or soldiers for doing certain acts generally
demanding greater risk of life. This is to be given out of the
share of the State.*
There are many Traditions of the Prophet reporting his
rewarding the soldiery with a fourth part of the State-share
for captures during the forward march, and with a third of
the State-share during the return journey . 4 The reason, as
I was assured by a modern military officer, was because a
return journey or retreat without complete conquest is
always much more precarious than a forward march and a
penetration.
(it) By salab is meant the spoil taken by a victorious
combatant from the slain. According to the Hanafite
school of thought, this customary rule operates only upon
previous declaration on the part of the commander.*
1 Ibn-Sa'd, 1/2, p. 6.
* SarakhsTv. Jl ^ , IV, 309.
* Kfisaniy, VII, 114-15.
4 Ibn-Rushd, op. cit., 1, 320 ; Sarakhsiv. , X, 28,
* Sarakhsiv. I, x, 47.
DISTRIBUTION OF BOOTY
The whole of the salab goes to the victor : no fifth is
shared by the State, except according to the Malikite school.
There is, however, one instance in which a fifth of the salab
was acquired for the State by the Caliph ‘Umar. It is said
that al-Bara’-ibn-Mslik killed a Persian satrap in a hand-to-
hand fight, and a fifth of his spoil was worth thirty thousand
drachmas ; and the Caliph is recorded to have said :
“ Though usually we did not take a fifth from salab, this is
worth too big a sum. And this was the first time when a
salab was shared by the State. 1 * This shows that the reward
of the salab is but a grace of the State.
Ibn-Jum'ah gives in detail the circumstances in which a
person may rightfully claim the property of the persons
whom he has slain. He says : 8
(a) At the risk of life, if fired from a castle or from
the backward rows, no right to the salab will be main-
tained.
(6) To kill in combat, not when the enemy is retreat-
ing with the defeated army.
(c) To slay in resistance, not for example when the
enemy has laid down his arms or is taken prisoner.
(d) To kill the enemy or at least make him harmless
by severing both hands' and feet, or a hand and foot of
the same side, or make him blind.
(e) Some hold that those who do not share in full, such
as the slaves, also do not get the salab.
The salab includes not only the arms and wearing apparel
but the horse, etc.
Safiy. — We have seen above, 3 * * that in pre-Islamic Arabia,
1 Ibn-Rushd, op. cit., I, 321 ; Tabariy, , fol. 52 6 (MS
Istanbul) ; ad-DabOsiy, > fol. 139, ch. Siyar (MS. Istanbul) ;
QudJmah-ibn-Ja'far, *'^A1 Part VII, ch. 19.”
* ^ ; v>J K , fol. 466-476, ch. xiv. (MS.
Istanbul). 3 Supra, part I, ch. ix. pre-Islamic Arabia.
242
MUSLIM CONDUCT OF STATE
the commanders of the razzias used to have the right over a
fourth of the booty, over the indivisible fractions, over
things captured before the defeat of the enemy and general
plunder, and over choice things — such as a sword, a girl, a
horse, etc.— which he could select for himself before dividing
the booty among the captors. Of these, as we have just seen,
the fourth part was reduced by the Prophet to only a fifth,
and that also went to the whole of the people, not to the
private coffers of the commander or the head of the State.
The choice, or safiy as it is called, was exercised by the
Prophet, 1 * and it is now considered by the generality of
jurists to have been a prerogative of the Prophet himself,
except Abu- Th awr. who maintained that the prerogative
was inherited by the successors of the Prophet in political
office.* The rest of the pagan customs were abolished by
Islam.
4. Postliminium or Return of Things and Persons captured
by the Enemy.
Muslim law recognizes that if the enemy capture a thing
from the Muslims, he becomes the rightful owner of it. 3 So
much so that he may sell it to Muslims. 4 * And if the owner
of such a property is given quarter, no case may be brought
against him in the Muslim Court regarding such property as
he may possess at the time which originally belonged to
Muslims. 3 — In short, same rights are recognized by Muslim
law in this respect for the enemy as are possessed by
Muslims, and the Muslim jurists admit that “in the sufferings
of this world, Muslims and non-Muslims are equal.” 6
1 Ibn-Rushd, op. cit. I, 316; AbO-YUsuf, p. 13.
* Ibn-Rushd, op. cit., I. 316.
3 Sarakhsiy. kj<***xU , X, 54. 4 Idem , p. 61.
5 Idem , , x, 52, 61.
6 Dabusiy, V! , fol. 1476, ch.
POSTLIMINIUM
243
If a member of the Muslim army is taken prisoner by the
enemy, no matter whether he is Muslim or non-Muslim, and
enslaved, he recovers his freedom as soon as he is out of
enemy jurisdiction . 1 * The same is true of enemy persons
taken prisoner by the Muslim army : if they escape and
reach a place of security, they regain their freedom . 8
Regarding the postliminium it is to be noted that if any-
thing possessed by Muslims was captured by the enemy and
was again taken back by the Muslim army, it had to be
handed over to the ex-owner upon production of evidence,
before the distribution of the booty . 3 * * For it was- the duty of
the State to take care of the interest of its subjects. If it was
distributed before the ownership was proved, then the ex-
owner had only the right to acquire it from the new owner
upon payment of its value, that is, he had the prior right of
purchase.
1 Sarakhsiv. , X, 93.
* Ibid.
* Sarakhsiy, x, 54 ; for a case of the horse and slave of Ibn-
*Umar : cf. Shaibanlv. Asl % ch. Jp & judicial (MS. Aya
Sofia).
CHAPTER XXII
Women in the Muslim Amy
AS early as the time of the Prophet, women took part in
battles as nurses, 1 * * transporters of the wounded and the dead, 1
cooks, 9 water-carriers, 4 * general servants, 9 and in some emer-
gent cases even as actual fighters. 6 In the battle of
Qsdisiyah (in the year 14 H.) women dug graves for the
dead. 7 In the time of Sarakhsiy (d. 483 H.), women were
employed in camps even as store-guards. 8
Although later jurists insist that such female volunteers
should be of advanced age, 9 we come across cases of
youthful and even unmarried girls in the expeditions of the
Prophet (cf. Ibn-Hishdm, p. 768). ‘A’ishah, the wife of the
Prophet, was very young when she was present at the battle
of ‘Uhud where she and several other lady volunteers
1 Sarakhsiy. Jt&A IV, 206 ; Bukhariy. 56:67; Ibn-
Hishdm, p. 688 ; ‘Umar-ibn-Muhammad, S-Jl— i ch.
, fol. Ha, b. (MS. Istanbul); Sarakhsiy, , fol.
150a (MS. Fatih. Istanbul).
* Bukhariy, 56:67; Sarakhsiy, • IV , 206.
* Sarakhsiy, , X, 70.
4 Bukhariy, 56: 68, 64:22.
* Ibn Hishdm, p. 768, during the expedition of Khaibar.
* Ibn-Hishdm, p.573; Burhanuddin-al-Marghinaniy. , III, ch.
^1 ^ (MS. Yanijami', Istanbul) ;
Sarakhsiy. ^***»JI > HI- 207.
7 Tabariy, Hist., p. 2317.
8 Sarakhsiy, , fol. 50a (MS. Istanbul).
* Fatauix 'Alamgmyah, in loco.
WOMEN IN THE MUSLIM ARMY
245
supplied water to the wounded. 1 * According to BukhSriv. 8
the wives of the Prophet used to accompany him even after
the command about veils. There is a story of a young girl
in the battle of Khaibar. 8 Bukhariv has several chapters
on women going on sea-warfare, nursing the wounded,
transporting the injured to hospitals, or otherwise rendering
service to the soldiers. ShaibSnly also allows young women
to volunteer in military expeditions if their near relatives
had no objection : “ A free woman may lawfully go on
military expeditions along with near relatives, in order to
nurse the wounded ; but she should not go without the per-
mission of her near relatives, be she of advanced age or
young.” 8 cA' £ o' ^ *^'3
> 7 *^' O 3 ' ^ E/*' 3 * ^
(.doLS. 3 \
The aunt of the Prophet killed with her own hands a
suspect Jew when he was roaming around the wall of
a small fortress where she was sent for safety® The wife
and daughters of the great Khslid-ibn-al- W alid made a
name for horsemanship. In the battle of Qadisiyah a band
of lady volunteers, armed with thick sticks, rendered valu-
able service in actual fighting 7 and once saved the situation
by marching in ranks, giving the impression of the arrival of
reinforcements. 8 In this battle one tribe alone had seven
hundred husbandless (widow or otherwise) women, 9 from
which the number of the whole female contingent may be
approximated. In the battle of Jamal, ‘A’ishah commanded
the army to oppose the forces of ‘Aliy, the Fourth Caliph.
1 Bukhariv. 56 : 65, 67. * Ibid.
* Ibn-Hisham. p. 768. 4 BukhSriy, 56 : 63-67.
* Sarakhsiy, , HI, 206.
4 Hist, of Tabariy, pp. 1479-80. 1 Idem pp. 2362-63.
* Idem . p. 2387. • Idem, p. 2363.
CHAPTER XXIII
Treatment of the Dead
WE have described above, that mutilation of enemy dead is
strongly forbidden by Muslim law. Respect is always to be
paid to the dead. So the Prophet used to stand up even if a
non-Muslim's body was being borne to burial . 1 * * Dead bodies
of the fallen enemy , 8 as those of Muslims, are to be buried . 8
If the enemy request the handing over of the body of some
dead person of their side, it may not be refused. So the
Prophet did, and even went so far as to refuse to accept
money offered by the enemy in lieu of the handing over of
the dead body, during the battle of Khandaq . 4 * Abu-Iianlfah
is, however, of the opinion that if money is offered in this
connection by the enemy, it may be accepted. For, he
argues, the property of the enemy may be captured by the
Muslims, and if they offer it willingly, its acceptance cannot
be forbidden . 8 The practice of the Prophet to hand over the
dead body freely seems, therefore, to represent piety rather
than strict law : taqwd and not fatwa, or was based on
deeper psychological objectives and propaganda purposes
far more previous than merely a sum of money.
1 Bukhlriy, 23 : 50, recording sayings and doings of the Prophet.
» Aba-Ya‘S, AjilhJuJl jX *. Vi , p. 34 (ed. Egypt). Also practice
of the Prophet recorded in Badr ; cf. Ibn-HishSm, etc., in loco.
* Tabariy, Hist. p. 2317.
4 Hist, of Tabariy, p. 1476 ; Ibn-Hanbol, 1, 271.
1 Shaibfiniy, Afl, ch. j£***JI U,
CHAPTER XXIV
Non-Hostile Intercourse with Belligerents
DURING war occasions often arise when the belligerents
are compelled or persuaded to enter into temporary non-
hostile intercourse with each other. Although hostility con-
tinues de jure , active operations cease de facto on the whole
or part of the front. It depends entirely upon the mutual
arrangements of the opposing parties.
1. Parley.
The first example of such intercourse is the exchange of
messages. Thus when one party desires a parley with the
adversary, it makes some intelligible sign — nowadays white
flags are in general use— to that effect, requesting that its
message-bearer be allowed to approach the opposite com-
mander and deliver what he is entrusted and authorised
to deliver. Such emissaries are generally accompanied by
interpreters.
From time immemorial the persons of message-bearers of
enemy have been recognized and held inviolable. Islam
sanctions this reasonable custom. 1 Enemy message-bearers
may not be made victims of molestation or any other
personal injury or insult, even during return journey. 2 Yet
it is not necessary that one should always agree to receive
an emissary of the enemy ; and in such a case one must
notify refusal.
1 Sarakhsiv. , X, 92.
* Cf. supra, part II, Diplomacy.
248
MUSLIM CONDUCT OF STATE
A message-bearer is given due respect, yet if military
necessities require, he may be blindfolded ; and he is bound
in honour not to take advantage of his position for the
purpose of obtaining military information, whether or not
physical means are used to hinder him therefrom. Usually
he may not be detained, but in special cases he may even be
kept in honourable detention for a while until the urgencies
of the situation pass. 1 * * He may even be taken to some other
place if need be, but he must be compensated for the
expenses of the extra journey ; and he must be left in or led
to a safe place only. 8
Anything approaching treachery on the part of the
message-bearer may be dealt with severely, and this would
deprive him of his personal inviolability. For, rights of
message-bearers, as ' those of others, correlate obligations.
^ L l^J * y\ Ujii ou)I uilLV).®
2. Exchange of Prisoners.
During war sometimes exchange of prisoners and other
captures, interchange of communications, and other such
things take place. As they are of mutual interest, they are
tolerated and even sought after. Specially is the release of
prisoners — on payment of ransom or otherwise as described
in a previous chapter — of prominent importance. Nowa-
days special officers are appointed for this purpose. They
are sometimes allowed to enter enemy territory, and some-
times a place on the border is chosen. They, as also the
vessels and other vehicles of conveyance used for that
effect, enjoy inviolability in going to and returning from the
place where exchange is effected. Obviously such convey-
ance parties, cartels as they are called, are bound, on point
1 Sarakhsiy, , 1,320-22.
* Alfkam as-Saldttn w’al-Muluk. ch. IV, (MS. ‘Arif-Hikmat, Madinak).
* Qur’an, 2 : 286.
NON-HOSTILE INTERCOURSE WITH BELLIGERENTS 249
of losing immunity, not to take any active part in hostilities
nor even to do things not connected with the purpose for
which they are employed, such as transporting of foodstuff,
etc., unless expressly allowed by the enemy. For a description
of actual cases see Mas‘Qdly’s , pp. 189-90.
(3) Permission for Travel, Transportation of Goods and
Licences to Trade.
Classical Muslim writers on law make little difference
between “quarter given to a besieged and severely beaten
enemy” and “permission to travel or trade in the Muslim
territory." Further, the non-Muslim of a State allied or other-
wise at peace and the non-Muslim of a belligerent State are
often styled with the same name. And it is almost impossible
to detach the rules of the one from the other except in cases
when the authors choose to distinguish by qualifying
adjectives. Everything they mention in the general chapter
on Giving Quarter ( ). And such foreigners are called
Musta'min.
We have already seen, in the beginning of this part of
our thesis, that it rests wholly and solely with the Muslim
government whether and to what extent to permit its sub-
jects and those under its jurisdiction to trade with a bellige-
rent State. And Muslim jurists seem to side with those who
opine that everything is permitted unless prohibited. 1 There
is no reason to exclude trade from this all-embracing condi-
tion.
Enemy subjects might be, and were,* granted permission
to travel within such part of the Islamic territory, for such a
time, and under such conditions as described in the permit
papers and passes. We have also seen that in olden times it
was customary to suppose as a matter of course that if a
1 Ci. supra. Part I, ch. VI, §10.
* For instance, Abo Yusuf, Kharaj, p. 78.
250
MUSLIM CONDUCT OF STATE
merchant was granted permission, it implied permission to
his servants and wife and children, without express mention.
Unlike the quarter given to a beaten and besieged enemy,
where nothing is granted as a right unless expressly provided
for, permits to trade or travel render immune both life and
property. And automatically they confer the right to sue
in Muslim courts for matters and transactions connected
with the permit which occur during the stay in the Muslim
territory during the period prescribed in the permit. Ash-
ShaibSnly is emphatic that : "It is a principle that the ruler
of the Muslims is bound to protect quartered foreigners as
long as they are in our territory, and to do justice to them
against those who do (them) wrong .” 1 * 3 It is to be taken for
granted that such foreigners are pre-eminently liable to be
sued by the subjects of the Muslim state. The foreigners
will be under Muslim penal law regarding their criminal
acts,* and under civil law for their transactions. And even,
when they return home, unless their country is conquered
by the Muslim state, or they are taken prisoners, debts and
trusts due to them are supposed to remain active ; and their
heirs, if they themselves die, may claim them . 8 I wonder, if
they subsequently become Muslim subjects, would these
rights revive ? It has also been mentioned above that foreign-
ers cannot be sued in the Muslim court for acts or transac-
tions entered into before their entering the Muslim territory,
even though the interests of Muslim subjects are jeopar-
dised . 4
1 Sarakhslv. jm), IV, 108.
* Ibid.
3 Asl of ShaibSniv. (MS. of Aya Sofia) Ch. ^
(3 ILtwJU L* l—
- £ OyC jl
4 of Shaibaniy, pp. 40-41 (MS. Aya Sofia, No. 1385).
NON-HOSTILE INTERCOURSE WITH BELLIGERENTS 251
(4) Contraband of Trade.
State interests sometimes require prohibition of the
export of certain kinds of goods to foreign countries, not
only in time of war but even in time of peace. This, which
is technically called contraband of trade , is an old thing in
Islamic jurisprudence, to be traced even to the time of the
Prophet. 1 * * * * The description of later jurists is obviously very
elaborate. They say, for instance, that whatever is utilised
for military purposes, cannot be allowed to be exported
from Muslim territory ; and base their argument not only on
the practice of the Prophet, but also upon Qur’Snic verses
like the following :
(a) And let not your hatred of a folk who stopped your
going to the inviolable Place of Worship seduce you to
transgress ; but help ye one another unto righteousness and
pious duty. And help not one another unto sin and transgres-
sion. (5 : 2)
(b) O Prophet ! strive against the disbelievers and the
hypocrites ! Be harsh with them. (9 : 73)
One such writer says :
It is not permissible to a trader to export to an enemy
country from which the belligerents may receive help
in fighting against the Muslims, such as weapons, horses,
non-Muslim slaves and all that is helpful in war. 8
And he excludes as clearly the other things :
And there is no harm in the export of cloths, house-
hold goods, 1 foodstuff, and the like. For they do not
c6me under the meaning of (military) help.*
And he evfen records practice of the kind :
And Jsucti hSs been the practice from all times that
they * \te., the traders) are used to enter the enemy
1 Cf. infra. . * KasSnly, VII, 102.
* Household goods, the actual word used is > which (according to
J1 r jit , IV, 74) means things which are used while they
subsist, e.g., bedding, pots, etc., unlike food.
* KasSniy, ibid.
252
MUSLIM CONDUCT OF STATE
territory for commercial purposes. And nobody has cast
blame or reproach upon them . 1
It seems certain that the preparation of the list of
contraband things depends entirely upon a government
which may even change and modify it from time to time.
For this we have a decisive precedent of the time of the
Prophet when Thumgmah-ibn-Uthal, a chieftain of YamS-
mah, embraced Islam and informed the Meccans : “ Not a
grain of Yamamah will reach you unless and until the Messen-
ger of God permit that .” 2 When the Meccans were reduced
to great straits on that account, they besought the Prophet
to lift the ban on their foodstuff and cloths ( ), which
was graciously conceded . 3
Naturally, not only are Muslim subjects forbidden to ex-
port contraband to non-Muslim countries, but also all per-
sons who are in Muslim territories. So Kassiniy adds :
And so also the belligerent, who enters Muslim ter-
ritory by (permission), will not be allowed to purchase
weapon ; and if he has purchased, he will not be allowed
to export them to the belligerent country . 4
Although foreign subjects are allowed to bring with
them whatever they like of wargear and are free to take it
back with them when they return, yet they cannot change
one kind of implement with another. If they change, for
example, their sword for bows and arrows — as the old
writers say— they cannot be allowed to take these newly
acquired things with them. Even if they change sword for
sword, spear for spear, and others for the same kind, it will
be ascertained whether the new things are not better in
quality. If they are, then they come under contraband.
1 KasSniy, ibid. 2 Ibn-HishSm , p. 997.
* Ibid., et seq.
4 KasSniy. VII, 102 ; cf. Mahsut of Sarakhsiy. X. 91 ; Kharaj of Abu-
YUsuf.p 118.
NON-HOST1LE INTERCOURSE WITH BELLIGERENTS 253
Otherwise, when equal or worse in quality, no restriction
may be imposed. And his own imports, even of the finest
quality, can neither be confiscated nor forced to be ex-
changed with other things, for this would be a violation of
pledge. 1 *
In this last category, however, one exception is made.
So the Muslim jurists 1 say that a slave, professing Islam,
cannot be allowed to be owned by foreigners and exported
to belligerent territory, even when he was owned by the
resident alien and imported by him along with him ; the
master will be compelled to leave the slave professing Islam
in the Islamic territory through sale or some other way.
This lest he may be forced to apostatise. And history shows
that these fears are not groundless. 3
We may conclude this chapter with a state document of
the time of the Prophet, in which trade with the enemy was
expressly permitted :
In the name of God, the Compassionate, the Merciful.
This is the writ of protection from God and Muham-
mad, the Prophet and Messenger of God, in favour of
John son of Rubin and the people of Ailah.
Their boats and their traders on land and sea shall have
the protection of God and of Muhammad, the Prophet.
This includes also the people of Syria, of Yaman, of coun-
tries beyond the seas cW) who are with them (i.e.,
the people of Ailah).*
It is to be noted that Ailah (modern ‘Aqabah, on the
Red Sea) was subdued and annexed by the Prophet during
the expedition of TabOk, in the year 9 H., when he had set
1 Kasanly. ibid. 3 Mabsut of SaraMisiy, X, 89.
3 Cf. supra , oart III, ch. xv/2, b, penultimate paragraph and footnote
thereto.
* Ibn-Hishdm, p. 902 ; tbn-Sa‘d. 2/1. p. 37 : Abu-‘Ubaid, Jl v*V(
§. 513; etc.
254
MUSLIM CONDUCT OF STATE
out against the Byzantines. This could not prevent him
from permitting his vassal to trade with the enemy.
(5) Truce and Armistice.
A truce after war may be of four kinds
Truce
r 1
r
Time
I
1
Unlimited Limited
Limited
_)
_ 1
Place
I
“V
Unlimited
4 '
The first of these is the one in which time and place of truce
are fixed and limited. This generally occurs during war on
a battlefield, so that the parties may carry on parleys, bury
the dead, or take precaution against common danger, such as
flood, etc.
The second may be for a fixed place yet unlimited in
time. I have not come across a case of this kind in early
Islamic history. Modern demilitarisation and neutralisation,
in which Turkey has sometimes been a victim, may perhaps
be referred to in this connection.
The third, general yet for a fixed period, is sometimes
an armistice to conclude a treaty of peace. During such truce,
all belligerent acts are forbidden. It is also possible that
this general peace for a fixed time should be a complete
peace and not merely an opportunity for negotiation. A
most important instance of this latter kind is the treaty of
NON-HOSTILE INTERCOURSE WITH BELLIGERENTS 255
Hudaiblyah between the Prophet and the Meccans, which
brought peace for a fixed period of ten years, at the end of
which each party would be at liberty to attack without
further notice. We may also cite the case of the Caliph
Mu’iwiyah. He had concluded a peace for a definite period
with the Byzantines, and had marched with his troops
towards their border before the expiry of the term, so that
he might attack immediately after the treaty of peace lapsed.
But one old soldier chid him, and said that he had heard the
Prophet saying :
Whoever has concluded a pact with a nation, he should
neither tie a knot nor open it on (that bond) until the
time expires . 1
The Caliph ordered his troops to demobilise and return
home. But it may be doubted whether this act was any-
thing but one of grace and piety.
The fourth and the last kind, unlimited in time as well as
in place, is usually at the end of war, when one has van-
quished or both are exhausted. We shall revert to this in
the next Chapter.
Authority to make truce . — The authority to make truce for
a limited period in a limited area rests in the commander-in-
charge, as we deduce from practice. The other three kinds
may only be concluded by the central government or its
authorised officials . 3
Effects of truce . — In a word, both the parties thereto are
bound to observe the conditions agreed upon by each
other : “ And the Muslims abide by their conditions .’’ 3
1 Abu-‘Ubaid, §. 447 . Tirmidhiy, Vol. 2, ch. “Treachery"
( J*** ).
* Cf. Tabariy, , fol. 7, §. 14; Suhailiy, J \ ,
II, 229.
* Saying of the Prophet, cited by Sarakhsly, ^ jmi, 1, 185,
256
MUSLIM CONDUCT OF STATE
During the operation of such a truce, the parties may do
whatever they like except the carrying on of hostilities
against each other, and actions which amount to infringe-
ment of treaty and breach of faith.
CHAPTER XXV
End of War
A WAR waged by the Muslim State may be brought to an
end in one of the following ways :
1. Both the parties cease hostilities without any mutual
agreement and without defining the length of the duration
of peace. This owing either to the fact that both the parties
are exhausted, or, even if one of the parties has won the
battle but dares not continue or further plans for hostile
activities in order to complete the subjugation of the van-
quished State. The latter case generally happens when the
weak party unexpectedly wins a heroic battle. Hostilities
may at any time revive in such a “ peace”. As examples,
we may refer to the battles of Badr, Uhud and Ktjandaq of
the time of the Prophet, when the belligerents parted with-
out attempting to define or settle their relations.
2. The non-Muslim enemy— generally meant to be their
sovereign — embraces Islam. It is not always necessary that
the unification of the Muslim State and this new Muslim
State should also take place. The letters of the Prophet
addressed to the chiefs of Ghassan, 1 Bahrain, 2 and 'Uman 3
1 QastallSniy, , I, 296, or my Corpus :
d JJu di .JLo
W • ••
* Ibn-TolQn, C>* , no. 2 (4), or
my Corpus : dl AU| •
3 Idem, no. 10 (1), QastallSniy , 1, 294, or my Corpus: Ur^Sl ^1
J,*u lyo U'AJ 1 ob ^^5
• UJo^.U ?
258
MUSLIM CONDUCT OF STATE
expressly provide for their maintenance in power on the
sole condition that they embrace Islam. Muslim traditions
bear festimony to the fact that a Negus of Abyssinia em-
braced Islam. 1 2 If this is true, we find that not only was his
territory not unified with the Arabian State of the Prophet
but also we may account partially for the famous order of
the Prophet not to attack Abyssinia so long as the Abys-
sinians themselves did not take aggressive action. 8
3. Defeat of the enemy and annexation of their territory.
The conquest of Mecca, Khaibar and many other places by
the Prophet are classical examples of this. In such cases
negotiations and treaties are not ordinarily needed. In
Mecca the Prophet concluded no treaty. In Khaibar. how-
ever, terms on which the life and property of the enemy
were spared were negotiated and accepted, and probably
also taken down in a document. 3
4. Acceptance by the enemy of the suzerainty of the
Muslim State. The submission of the city-states of Najran,
Taima’, Fadak, Ailah and others in the time of the Prophet
seem to be of this kind only. In some of them no war had
preceded though pressure had been brought on them which
had implied military action in case of resistance. 4
5. Formally settling the differences in a treaty of peace,
while both the parties retain their independence.
The contents of the treaty are generally governed by the
results of war. Usually a provisional agreement is
first reached settling preliminary points. Immediately after-
wards military activities are prohibited from, including the
right of inflicting loss of life and property on the enemy.
Later other details of the final settlement are discussed and
1 Hist, of Tabarly, pp. 1569-70, or my Corpus.
2 ^5**} AAxi.1 . Ibn-Hanbal, V. 371 ; Abu-D3wud, 36:8.
3 For details cf. my Diplomatie Musulmane, I, 50-51.
4 Idem, under names concerned, where references will also be found.
END OF WAR
259
carried out. This we shall now treat.
Nature of the Treaty of Peace.
Sometimes a treaty of peace provides for future friend-
ship and even alliance and co-operation on conditions
agreed upon in treaty. More often it simply provides for
cessation of hostilities and correct neighbourly relations.
Weaker parties often consent to make reparations and pay
tribute. In the unratified provisional treaty with the
Ghatafan, the Prophet agreed to hand over to them a third
of the produce of the oases of Madinah provided they
deserted their allies besieging Madinah, and made a separate
and immediate peace with the Muslim State . 1
Islamic polity being based on a community of co-reli-
gionists it is unthinkable to contract a treaty of perpetual
alliance with non-Muslims. When the Prophet established a
city-state at Madinah immediately on his migration to that
place, he consented, however, to a confederation with the
Jews . 2 Further, he concluded pacts of mutual assistance
with pagan tribes around Madinah. especially with those in
the direction of YanbO’, through which the Quraishite
caravans passed en route to and from Syria and other
northern countries . 3 In all these treaties of the early days of
the Muslim State, there is no time-limit. There are allusions
in the Qur’an 4 to many other treaties of friendship with non-
Muslims without any defined duration. In the treaty of
Hudaibiyah alone we come across the mention of the term
1 Ibn-Hisham, p. 676 ; Tabarly, p.1474 ; Sarakhsiv. I ,
IV, 4-5.
* Cf. Constitution of the City-state of Madinah, §. 25, and §. 24-47 in
general ; Islamic Review, Woking, August-November, 1941.
* For the treaties with Damrah, Ghifar. Ashia*. etc., cf. Ibn-Sa'd, 2/1,
pp. 26-27, etc. or my Corpus.
4 Cf. Tafsir of Tabariy for the verses 9 : 1-2.
260
MUSLIM CONDUCT OF STATE
“ ten years ” 1 during which the treaty would operate.
During the later years of the life of the Prophet, the
Qur’an laid down :
“ O ye who believe ! Take not the Jews and the
Christians for friends. They are friends one to another.
He among you who taketh them for friends is (one) of
them. Lo ! God guideth not wrong-doing folk . . . Your
friends can only be God and His Messenger and those who
believe, who establish worship and pay the zakat (sur-
plus-property tax), and bow down (in prayer). And
whoso taketh God and His Messenger and those who
believe for friend (will see that) the party of God are the
victorious. O ye who believe ! Choose not for friends
such of those who received the Scripture before you, and
of the disbelievers, as make a jest and sport of your reli-
gion. But keep your duty to God if ye are true believers.”
(5 : 51, 55-57).
And went even so far as to prescribe :
“ O ye who believe ! Choose not your fathers nor your
brethren for friends if they take pleasure in disbelief
rather than faith. Whoso of you taketh them for friends,
such are wrong-doers.” (9 : 23).
Moreover, in conformity with a Qur’anic command (9 : 1-2),
the Prophet caused a declaration or proclamation to be
made that all treaties for defined periods should remain
operative during the contracted time, yet all those treaties
concluded with pagans for mutual help without time-limit
were thereby denounced with a notice of four months.
For all these reasons, Muslim jurists conclude that
treaties of friendship should not be concluded with non-
Muslims for perpetuity. Generally the jurists agree that ten
years should be the maximum period, in view of the treaty
1 For text, lbn-Hisb.dm % etc., or my Corpus ; see also infra.
END OF WAR
261
of Etudaiblyah. Suhailly, 1 * 3 however, records that “the
Jurists of Hijaz allow peace for a definite period, even ex-
ceeding ten years provided the supreme ruler, and not any
lesser authority, agrees to it.”
Effects of a Treaty of Peace.
1. The subject over which hostilities had broken out
is settled.
2. The rights of belligerency, i.e., killing, capturing,
plundering, occupying, and other things described, before,
are brought to an end.
3. Unless otherwise provided in the treaty, the status
quo before the conclusion of the treaty will be maintained.
4. Prisoners of war are exchanged or otherwise released,
for which there are generally express stipulations. Other
booty is not exchanged unless expressly provided for.
5. As soon as a peace is concluded, the treaties, suspended
during the war, and which require no renewal, automa-
tically revive ; and treaties dealing with behaviour during
the war are suspended.
Elements of Treaty.
Basing his argument on the Qur’Snic command : "When
ye contract a debt for a fixed term, record it in writing,” a
and on the practice of the Prophet, Shaibaniy* and others say
that a treaty must be in writing. The date of the writing of
the treaty and the date on which it comes into force, as well
as the duration of the treaty, must be precisely mentioned. 4
Apart from general matters, such as the cessation of fighting,
i ciiYSJa.jjll, n, 229.
* Qur'an, 2 : 282.
3 Sarakhsiy, , IV, 60-61.
4 Idem, pp. 62-63.
262
MUSLIM CONDUCT OF STATE
the settlement of conditions created by war, etc., and special
things such as agreement regarding the matters because of
which the hostilities broke out and miscellaneous things
which have a connexion either with general or special
things— apart from all these things — the treaties include
solemn promises for the observance and execution of the
treaty , 1 2 the signature 3 of the duly authorised persons, and
the sanction for execution, such as hostages , 3 etc. And along
with the main treaty, sometimes annexes, supplements and
even secret sections are also to be found.
In fact there is no limit to the subject matters of treaties . 4 *
Hence no more than these essential and elementary points of
a treaty could here be described.
Ratification of T reaties.
Generally treaties are negotiated and provisionally settled
by representatives of States. For matters ultra vires , they
referred even in the time of Shaibanly to the central govern-
ment . 3 History records a letter of Khalid-ibn-al-Walld.
in which he asked from Yaman for instructions from the
Prophet . 6 If the supreme chief is not available at hand,
the provisional agreement is later ratified by competent
authorities. It is possible that ratification may be denied
and the whole treaty becomes null and void. There is an
instance of this in the time of the Prophet, when the Pro-
phet himself had concluded a pact with the proviso that it
would be ratified after consulting the pillars of the State.
1 Sarakhsiv. IV, 62.
2 Idem, p. 63 mentions seal.
* Idem, pp. 415-60, a detailed description as to their expenses, etc.
4 Qalqashandly, gvo , XIV, 11.
* Sarakhsly, , IV. 313, etc.
* Ibn-Hisham, p. 959 ; Hist, of Tabariy, pp. 1724-25.
END OF WAR
263
As a matter of fact, they rejected the terms, and the parch-
ment was consequently effaced . 1
Interpretation of Treaties.
Classical Muslim writers on International Law and
“ Roots of Law ” have given long details of the principles
of the interpretation of the terms of treaties. I am tempted
to quote a passage of Shaibaniy, which shows the great con-
cern which Muslim jurists at the zenith of their empire had
for the scrupulous observance of treaties, and how they
feared scandal and disrepute :
There are things which may be taken for granted by
the Muslims even without express mention of them, but
other nations may not imply that. Such things must be
expressly mentioned, otherwise the contracting party may
conclude that there is an infringement of the pact. And
as we have mentioned, the document must be written in
a way to bear witness against the contracting parties, and
no accusation of perfidy should be possible.*
In another passage, the same author opines that if a be-
sieged fortress surrenders on the condition that the free
people will not be molested and that the ownership of the
slaves will be transferred to the conquering army, and the
parties differ regarding the status of certain individuals, the
presumption will be that they are free people, since
originally every man is free . 5
Amendment of Treaties.
Treaties may be amended in part at any time by mutual
* Ibn-Hisham, p. 676 ; Hist, of Tabari, p. 1474 ; Sarakhsiy.
J i r £}\ ji«J\ CJ Z> , IV. 5.
* Sarakhsiy. CJ* 1 • IV, 64.
* Idem, p. 80.
264
MUSLIM CONDUCT OF STATE
consent of the parties concerned, instead of concluding a
new pact. See also infra .
Denunciation of Treaties.
It is possible that changes of time render certain condi-
tions of a treaty impracticable, and in view of the changed
circumstances they should be revised. Muslim jurists say
that if the Muslim ruler denounces a former treaty, he can-
not do so unless he informs the other party, and he cannot
act in any way contrary to the treaty until reasonable time
has passed, in which it is expected that the information has
reached the central government of the other party . 1 *
4
Hostages and Pledge .
In the time of classical Muslim jurists, hostages used to
be exchanged or given by one party as a pledge of good faith
in carrying out the conditions of the treaty.
Of the very long discussion of the subject by Shaibanly,
I shall refer to one rule which has had the sanction of the
practice of generations of later Caliphs. If Muslim hostages
are treacherously murdered, the enemy hostages shall not
suffer for the guilt which is not theirs personally. The
practice of the Caliphs Mu'awiyah and Mansur,* as well as a
tradition of the Prophet and an oft-repeated verse of
the Qur'an , 3 are cited by our authors in this connexion. The
way out, according to Abu-Hanlfah, was to force the
hostages to become non-Muslim subjects of the Muslim
State, since they could not return before the arrival of the
Muslim hostages, and their murder made this impossible,
1 Sarakhsiy, 1 IV, p. 7.
* Idem, p. 43; Sarakhsiy, Mabsut , X, 129; Mawardiy, p. 84; AbU-
‘Ubaid, §. 445-46.
3 Qur’Sn, j); r? * 6:165 ’ 17:15,35:18,39:7. Cf.
also 53 : 38.
END OF WAR
265
thus rendering the permanent stay of the hostages in the
Islamic territory inevitable. 1 *
The Classical Treaty of Ijiudaibiyah.
The discussion of this subject may be illustrated by the
most important treaty of the time of the Prophet.
Having migrated for religious persecution, and militarily
harassed for six long years with varying fortunes, the Pro-
phet went on pilgrimage to visit the House of God in his
father’s town and stronghold of his inveterate enemies,
Mecca. At that time, he had the embittered Jews in the
formidable colony of Khaibar. in the north ; and the irritated,
though much exhausted, Quraish of Mecca in the south. A
Khaibar-Mecca coalition was imminent. At least this much
was certain, that, if the Muslims marched towards Mecca,
the Jews would storm the empty and undefended Madinah ;
and if the Muslims attacked Khaibar. the same was the fear
on the part of the Meccans, 1 and the Muslims at that time
were not sufficiently powerful to undertake both the expedi-
tions at once, or at least to spare sufficient force to defend
the metropolis of Islam when the expedition against either
Mecca or Khaibar had left the city.
Moreover the Iranians had just suffered a decisive defeat
at Ninevah at the hands of the Byzantines, 3 and it was just
the time for Arabia to postpone its internecine feuds and
take advantage of the international situation, and at least to
free the Arabian provinces toiling under the Iranian yoke,
e.g., Bahrain, ‘Uman and Yaman.
The Prophet wanted a free hand regarding Khaibar and
Iran, and to that end was prepared to concede terms even
1 SarakhsTv. by***X\ t x, 129.
* Idem, X, 86.
* Gerland, Die Persische Feldziige d. K. Heraklius.
266
MUSLIM CONDUCT OF STATE
derogatory to his prestige. This on the one hand.
On the other hand, cut off from their victual marts of
Syria, 1 * 3 ‘Iraq,* Yamamah* and even Yaman, 4 5 surrounded on all
sides by Islamicised tribes, 9 deserted by their friends, 6
suffering actually by drought 7 when the Prophet had won
the sympathy of many of them by contributing the hand-
some amount of 500 gold coins towards the famine fund, 8 by
raising the ban on the grain of Yamamah, 9 and by going to
visit the national sanctuary of the enemy during the months
of the Truce of God — it was hoped in these conditions that
the Quraish would the more easily be prepared to come to
terms, provided their amour propra were not hurt and face-
saving clauses were inserted.
In these circumstances, the Prophet, with a force of 1400
strong, camped at Iludaibxyah, in the outskirts of Mecca.
And after protracted negotiations, 10 the following treaty was
concluded :
Text of the Treaty 11
With Thy name, O God !
This is what was agreed upon between Muhammad,
I Ibn-Hishdm , p. 547 ; Hist, of Tabarly, p. 1347 ; Ibn-Sa'd , 1/2, p. 63.
9 Ibid., and lbn-Sa k d , 1/2, pp. 24-25.
3 lbn-Hishdm , pp. 997-98 ; 0 f Ibn-‘Abd-ul-Barr, no. 278.
4 For, several Muslim attacks on Nakhlah, etc., had rendered this route
also precarious.
5 For instance, Khuza‘ah in the south of Mecca, not to speak of the
north and east.
8 lbn-Sa'd , 2/1, p. 48.
7 Ibn-Hiiham , p. 998 ; Caetani, anno. 6.
8 Sarakhsiy. , X, 91*92 ; idem, £ j ^ , I, 69.
* Ibn-Hishdm , p. 998.
10 Ibid., etc., in loco.
II For the original text see : Ibn-Hishdm , pp. 747-48 ; lbn-ls'haq (MS.
Paris) fol. 170n ; Maghdzi of WSqidly (MS. British Museum), fol. 140a;
Ibn-Sa‘d, Tabaqdt , 1/2, pp. 70-71 ; Hist, of Tabarly pp. 1546-47; Tafstroi
END OF WAR
267
son of ‘Abdullah and Suhail, son of ‘Amr :
They both agreed to put down fighting on the part of
people for ten years, during which period the people
were to enjoy peace and refrain from fighting with each
other.
And whereas whoever of the companions of
Muhammad, comes to Mecca on fiajj or ‘Umrah-pilgrim-
age, or in quest of the bounty of God, (i.e., commerce,
cf. Qur’an, 62 : 10), en route to Yaman or Ta’if, such shall
be in security regarding his person and property. And
whoever comes to Madinah, from among the Quraish, en
route to Syria or ‘Iraq (variant : Egypt) seeking the
bounty of God, such shall be in security regarding his
person and property.
And whereas whoever comes to Muhammad from
among the Quraishites without the permission of his
guardian ( mawla ), he (i.e., the Prophet) will hand him
over to them ; and whoever comes to the Quraish from
among those who are with Muhammad, they will not
hand him over to him.
And that between us is a tied-up breast (i.e., bound
Tabariy, Vol. 26, p. 61 ; Risalat Nabamyah of ‘Abdal-Mun'im-Khan, no. 60‘
citing Ibn-Hanbal ; Sirah of Bakriy (MS. Aya Sofia), in loco ; Ibn-Kathir,
Bidayah, IV, 168-69.
For extracts from the text and certain variants see : Amwdl of AbQ-
‘Ubaid, §. 441-44 ; BukhSriy. 64 : 43 ; 64 : 35 (29), 53 : 6-7, 54 : 1 ; Khar a j of
Abn-YUsuf, p. 129 ; Kanz al-'Ummal of ‘Aliy-al-Muttaqiy. Vol. 5. nos.
5534, 5536, citing Ibn-Abi-§&aibah ; l'ldm-as-Sd'Hin of Ibn-Tulan, no. 26 ;
for further references see Wensinck. Miftdtf-Kunuz-as-Sunnah, s.v.
Hudaibiyah.
For analyses and exposes, see : Annali delV Islam of Caetani, anno.
6 § 34 ; Heffening, Das islamische Fremdenrecht, append. 2 ; Sprenger, Das
Leben und die Lehre des Muhammad , III, 246.
Also my, Arabic or French Corpus together with Diplomatic Musulmane,
in loco, and my Hindustani article in Siyasat quarterly, Hyderabad, April,
1942.
268
MUSLIM CONDUCT OF STATE
to fulfil the terms), and that there shall be no secret help
violating neutrality, and no acting unfaithfully.
And that whosoever likes to enter the league of
Mutiammad and his alliance, may enter into it ; and
whoso likes to enter the league of the Quraish and their
alliance, may enter it.
— And thereupon upsprang the tribe of Khuza'ah
and said : We are in league with Muhammad and his
alliance ; and upsprang the tribe of Banu-Bakr and
said : We are in league with the Quraish and their
alliance. —
And that thou (Muhammad) shalt return from us
(Quraish) in this year and enter not in our midst ; and
that when it is the coming year, we shall go out from
thee and thou shalt enter with thy companions and stay
there three nights, with thee being the weapon of the
rider : having swords at the side ; thou shalt not enter
with what is other than them (swords).
And that the animals of sacrifice (brought by thee) will
be slaughtered where we found them ( i.e ., in Hudaibiyah),
and thou shalt not conduct them to us (in Mecca).
[Probably Seal of Muhammad &
Seal of Suhail]
Witnesses :
Muslims: — Abfl-Bakr, ‘Umar, ‘Abdar-Rahman-ibn-‘Awf.
‘Abdallah-ibn-Suhail-ibn-‘Amr, Sa‘d-ibn-
- Abl-Waqqas, Mahmud-ibn-Maslamah, etc.
Meccans : — Mikraz-ibn-Hafs, etc.
Scribe and witness ‘Aliy-ibn-Abi-Talib.
Two copies of the treaty were prepared. One was kept
by the Prophet, and the other was handed over to Suhail,
the plenipotentiary of the Quraish . 1
1 Sarakhsiy, ^£1) £ j** , IV, 61 ; Ibn-Sa'd, 1/2, p. 71 ; Lammens,
La Mecque , p. 136.
END OF WAR
269
The Prophet detained the Quraishite plenipotentiary
until the Muslim envoy, who was wrongfully interned in
Mecca, returned safe . 1
After the agreement was reached, but before the comple-
tion of signatures, a persecuted convert, who happened to
be the son of the Quraishite plenipotentiary, fled from
confinement by his father, and took refuge in the Muslim
camp. Upon demand, the Prophet extradited him, and
conceded that the treaty should come into force immediately
upon agreement without waiting for formal execution . 2
The Prophet interpreted the term of extradition to
embrace only men, and excluded women when some cases
arose before the departure of the Prophet from Hudaibiyah.
The Quraish reluctantly gave way . 3 In case of converted
women taking refuge in Muslim territory or camp, the
Prophet allowed their husbands, if any, a right to what they
had paid as nuptial gift — which was credited to their
accounts from the general exchequer . 4
The one-sided extradition proved expensive and incon-
venient to the Meccans ; and, upon their own request, the
Prophet consented to amend the treaty in this respect.*
Cases arose to prove that extraterritorial jurisdiction of
camps and armed forces was recognised by both the parties . 6
Extension of three days’ limit for the stay of the Prophet
in Mecca was requested, but was not granted by the
Quraish when the Prophet visited Mecca the following
year . 7
1 Instln of Halabiy III, 26 ; Sirah of Dahl5n, II, 46 ; Sirah of KarSmat
"Aliy, ch. Hudaibiyah.
1 Ibn-Hisham , p. 748 ; Hist . of Tabarly, pp. 1547-48 ; lbn-Sa'd, 1/2, p. 73.
8 Ibn-Hisham , p. 754.
4 Idem, pp. 754-55 ; cf, Qur’an, 60 : 10-11, and commentaries thereto.
6 Ibn-Hisham , p. 752-53.
8 For several cases, cf, Ibn-Hisham , pp. 748-55.
7 Ibn-Hisham , p. 790. After three days’ stay the Prophet evacuated
the city, and did not utilise the opportunity to make treacherously a per-
270
MUSLIM CONDUCT OF STATE
The main object of the treaty was to get permission to
visit the national sanctuary of the enemy. Incidentally, a
truce for ten years was agreed upon, with immune transit or
stay for religious or commercial purposes in each other’s
territory. As an annexe is mentioned the adherence of
various tribes on either side getting the same rights and
obligations as the original contracting parties . 1
As a proviso, the Prophet added, before affixing his seal,
“ the rights and duties are equal and reciprocal between you
and us.” *
The treaty is silent regarding the property of the Muslim
refugees, appropriated by the Meccans , 3 as the Muslims had
fled to Madinah, the property of the Prophet not excluded.
And tacitly the Muslims accepted the status quo regarding
the validity of the enemy occupation.
manent occupation of the city, from which nobody could oust him, least
of all the Quraish, especially when they had left the city.
1 Prophet’s Letter to Budail, cf. Ibn-Sa'd , 2/1, p. 25 ; Abu-‘Ubaid, § 515 :
QjisLl U JJi*
% lbn-Sa'd % 1/2, p. 74 : v— *lx£J 1 <3 I
(tux* UJ
* Cf. Qur’an. 59:8 cr*
Bukhariv. 64 : 84 (3) ; Sarakhslv. Mabsut, X, 52 ; Ibn-Hishetm.
pp. 321-22, 339.
CHAPTER XXVI
Miscellanea
(2) Neutral and National Ambulance Service to the Sick and
Wounded.
MEDICAL service is purely humanitarian. Doctors and
nurses are never harmed if they did not resist ; they might
be captured.
The neutral and even non-Muslim ambulance service
and medical help for Muslims is mentioned by as early a
jurist as Shaibanly 1 * (d. 189 H.). Even Muslim relief work,
rendered for non-Muslims, might be upheld on the ground
of the Qur anic precept : a “ And co-operate regarding
charity and piety,” j
Instances abound in the life of the Prophet of arrange-
ments for ambulance service. In the battles of Uhud,
Khandaa. and others, history has recorded details of field
hospitals, nurses, and arrangement for the transport of the
wounded, etc. 3 The armies of the Caliph ‘Umar, too, were
provided with medical men. 4
(2) Army-Court.
In the time of the Prophet, no special arrangement of
judges for the expeditions is recorded, the commander
himself functioning simultaneously as a judge also. We
come across mention of the post of army-judge ( ^yali)
1 Sarakhsly, , IV, 112-13.
* Qur’an, 5:2.
* Cf. supra ch. xxii, “Women in Muslim Army."
4 Hist. ofTabariy, p. 2223 : j)
272
MUSLIM CONDUCT OF STATE
first in the time of the Caliph ‘Umar . 1 They must have
functioned not only to decide cases of the members of the
Muslim army, but also of land and sea booty. Certain provi-
sions of the Muslim penal code ceased to apply during an ex-
pedition, as long as the army found itself in enemy country . 2
If an act was done at the command of a superior
authority, it could not be considered a crime of the com-
mitter; the enemy might not try him for that act. But
without knowledge and permission of the higher authority,
if any wrongful acts were committed by an officer, even the
officer-commanding, the damages had to be paid by his
government to the sufferer. The disciplinary punishment of
such an officer by his own government does not come under
international law. As an instance we may mention the case
of the Banu-Tadhimah. in which blood-money was paid by
the Muslim government for every life ; and even dogs killed
were compensated for. A considerable amount of money
was added for “ unknown damages that may have been
done .” 5
The Prophet had the emancipation of slaves so much at
heart that he declared that if the slaves of the enemy
deserted their masters and embraced Islam and came to the
Islamic territory, they would at once become free. Several
cases of the time of the Prophet are also recorded as prece-
dents . 4
1 Hist, of Tabariy, »l«aS l j
«-)”**■ 3
'O^-* - ** «-''■> KJjj
* Sarakhsiy, IV, 108, citing the traditions of the
Prophet.
* Ibn-Hishdm. p. 833.
4 See Battles of Ta’if and Khaibar, in Ibn-Hishdm, etc.
MISCELLANEA
273
(3) Religious Service in Time of Danger.
The religious polity of Islam and the moral basis of
Muslim international law is demonstrated by what every
classical work on Muslim International Law mentions and
which is also taken notice of in an unusual detail by the
Qur’in. 1 I mean, the five daily congregational religious
services should not be abandoned even when actual fighting
was going on. Muslim soldiers are reminded thereby so
many times daily that they were fighting only in the cause
of God, not at all caring for any worldly gain. 5 * * 8
(4) When and Why the Muslims Should Agree to Make
Peace ?
One or two quotations of the Qur’an will explain the
point :
(a) So do not falter and cry out for peace when ye are
the uppermost. And God is with you, and He will not
grudge (the reward of) your actions. (47 : 35).
(b) And if they incline to peace, incline thou also (O
Muhammad) to it, and trust in God. Lo ! He is the
Hearer* the Knower. (8 : 61).
It will be noticed that the victorious Muslim is required
to offer peace, not the annihilation of the enemy. The
object of a Muslim war is triumph of the banner of God, and
no worldly gain.
(5) Effects of Intentional and Mistaken Inter-Muslim Homi-
cide*
A few cases of the time of the Prophet would suffice to
1 Qur’Sn. 4 : 101-103.
* Cf. supra , saying of the Prophet that he alone of the warriors would
go to Paradisfe who fought in order that the word of God may reign
supreme, uwi -Oil 0 ySJ Jj\5 ^ Jl S s XLU <3 a-
274
MUSLIM CONDUCT OF STATE
illustrate Muslim law and practice on the point :
(a) It is recorded that al-Harith-ibn-Suwaid, a hypocrite,
had intentionally murdered al-Muia dhdh ir-ibn-Dhivad at
Uhud, at the time when a dismay was caused in the
Muslim army by the unexpected attack of the enemy.
The reason of this murder was to exploit the time and
avenge an old pre-Islamic feud. The Prophet ordered,
after the trial, for beheading the culprit. ( Cf . Ibn-
Hisham, p. 579 ; Ibn-Habib, Muhabbar , p. 467 )
(b) liusail-ibn-Jabir was killed by Muslim soldiers
during the same dismay at Uhud, quite unintentionally,
though in spite of some warning. Yet the situation was
so difficult and out of the control, that such faint protes-
tations could hardly be effective. The Prophet, on
hearing the case, ordered for the blood-money to be paid
from the general treasury, yet the son of the deceased
person waived his rights to this money and exclaimed :
“ May God forgive ye ! (Cf. Ibn-Hisham, p. 607.)
(c) During the war of Khandaq, two Muslim detach-
ments met each other in the night, and before the ex-
change of parole and ascertainment of the identity, some
blood was already shed, causing some slain and others
wounded. The Prophet left the matter with impunity
and said : the dead of either party are entitled to martyr-
dom and shall go to paradise ; and the action of either
party was in the path of God ; and no right to damages
accrues. (Burhanuddln al-Marghln5nly, in his adh-
Qhakhirah al-Burhaniyah, on the authority of ash-
Shaibanly, MS. Istanbul, ch. Siyar, § 23\
MISCELLANEA
274 a
(6) Debts due to a Defeated Enemy . ,
We have mentioned above (i cf . ch. xi, Effects of Declara-
tion of War, 3 ) that the mere outbreak of war does not wipe
out the right of the now-enemy persons to debts and
deposits ; on the other hand it remains inviolate.
Now it may be noted that even the defeat of the enemy
does not deprive them of their right to recover a debt,
accrued in a lawful manner. For this we possess the very
high authority of the Prophet
“It has been argued, moreover, on the authority of the
tradition regarding the (defeated Jews a of> Banu-
Qainuqa*. So when the Prophet ordered their expulsion
(from their homes), they said : But we have debts to re-
collect whose date of payment has not yet arrived. The
Prophet suggested : Capitalise them at a discount.
Again, when the Prophet ordered the expulsion of
Banu an-Nadir, they said : But different people owe us
debts # whose date of payment has not yet arrived.
The Prophet suggested : Capitalise them at a discount.
— (cj*** 4 *- HI, 180)
These two important precedents show that monetary rights
are not ipso facto extinguished if the parties are render-
ed enemy to each other; on the other hand such rights
remain operative between the creditor and debtor in spite of
war and of even defeat and unconditional surrender.
The conversion of long-term debts into those payable
immediately, at a discount naturally, was only an option
which was no denying the validity of the full value of the
actionable claims.
PART IV
NEUTRALITY
CHAPTER I
Introductory
THE neutrality of a State, in a war between two or more
parties, is as old a thing as the co-existence of more
than two independent states. Still, judicial conception of it
does not seem to have developed, before modern times, to
an extent calling for special chapters in law books. Muslim
authors mention it incidentally in the discussion of the laws
of war or peace, according to whether the Islamic State is or
is not a party in the conflagration. Further the data are
meagre ; and so far as I know, this is the first 1 attempt to
collect and glean relevant points from the dispersed material.
1 Cf. also my article in Z. D. M. G., 1935 : “ Die Neutralist im
islamischen Volkerrecht."
CHAPTER II
Technical Term for Neutrality
MODERN Arabs use the word J}iyadah ( S>U». ) for neutra-
lity. Pre-Islamic and early-Islamic Arabs employed the
term i'tizal ( ). Though this term now applies only to
a particular school of Muslim philosophical and theological
thought, even its scholastic sense was suggested by the
neutral attitude which the Mu'tazilites adopted towards
both the Sunnis and the Khariiites.
After a long discussion, Prof. Nallino of Rome has also
come to the conclusion that :
1. Nel campo teologico il nome d’al-Mutazilah non
ebbe origine dall’idea di secessione dalla ortodossia , e non fu
quindi escogitato dagli ortodossi con implicato senso di
biasimo o do dispregio coma una dichiarazione di eterodossia ;
quel nome fu scelto, od almeno accolto, dai Mu'taziliti pri-
mitivi nel significato di, neutri', neutri ,' di, non parteggianti
per nessuna delle due fazione contrarie ( ortodossi e Hdrigiti),
nella grave questione poltioco-religiosa del modo di con -
siderare il fasiq.
2. Poiche la questione suddetta ricevava la sua impor -
tanza dalle lotte politiche e dalle guerre civile del I sec., e
naturale che il nome di al-Mu'tazilah fosse desunto dal lin-
guaggio politico del tempo ; i nuovi Mu'taziliti dogmatici
erano in origine i continuatori , nel campo teorico o specula-
tive, dei Mu'taziliti politici o practici. ( Rivista degli Studi
Orientals Roma, 1916, pp. 447 et seq.)
Translation :
1. In theological discussions, the name Mu'tazilah did
not originally mean secession from Orthodoxy, and was
278
MUSLIM CONDUCT OF STATE
not therefore excogitated by the Orthodox (Sunnis, with
the implied sense of blame or contempt as a declaration
of heterodoxy. That name was chosen or at least
accepted by the early Mu'tazilites in the sense of neutrals ,
“ those who participated with neither the Orthodox nor
the Khariiites ” in the grave politico-religious question as
what to consider a sinful man (i.e., whether he neverthe-
less remained a Believer or the commission of sin rendered
him an Unbeliever).
2. Since the above question received its importance
on account of the political rivalry and the civil wars of
the first century of Islam, it was natural that the term
Mutazilah should be influenced by the political language
of the time. The later dogmatic Mu'tazilites were, in the
origin, mere continuators of the old political or practical
" Neutrals, ” in the field of theory and speculation.
The Mu'tazilite philosophy occupied Muslim politics so
much during the reign of Ma’mun and his successors, that
golden age of Arabic learning, that the original legal and
philological sense of this term soon fell into desuetude.
In order to show that neutrality was not unknown even
in pre-Islamic Arabia, a few quotations may not be out of
place. They will, at the same time, give a historical back-
ground to the pre-Islamic Arabic practice, which has sub-
stantially influenced Muslim law — as was shown in Part I of
this monograph. It will be noticed that at times the term
I'tizal or its inflected forms are used, and at others the
sense has been rendered in other ways.
1. The treaty of neutrality and friendship between the
Emperor Decius (d. 251 A.Ch.) and the Ghassanid prince of
Syria.
Before the migration of the Ghassanids from Yaman to
Syria, the Puj'umites had settled in Syria, and used to tax
every new immigrant, on behalf of the Byzantine emperor
. TECHNICAL TERM FOR NEUTRALITY
279
according to his means. The refugee Ghassanids at first
agreed to this tax, but later they refused to pay. A bloody
battle ensued in which the ipuj'umites were annihilated.
The emperor feared the Ghassanids might incline to Per-
sians, So he made this offer to their chief, Tha'labah :
You are a mighty and numerous people and you have
annihilated this tribe, which was the mightiest and the
most numerous among the Arabs. I am prepared to
install you in their stead and conclude with you a treaty
to the effect that if any Arabs attack you, I shall help
you with 40,000 Roman combatants ; and, if any Arabs
attack us, you shall help us with 20,000 combatants ; and
that you do not mingle in our affairs with the Persians.
Tha'labah accepted this, and the treaty was concluded.
The emperor made Tha'labah a king, and bestowed upon
him a crown ( mallaka , tauwaja). The name of the em-
peror was Decius. ( by Ibn-Hablb, fol. 131a,
MS. British Museum ; pp. 371 — 2, ed. Hyderabad).
2. During the famous 40 years' war of Basus, which
raged between the tribes of Bakr and Taghlib, there was
frequent mention of neutrality. Al-Kalbly says :
When Kulaib, the chief of the Taghlib, was murdered
by a young Bakrite, a deputation was sent to the
Bakrites in order to demand the extradition of either
the culprit or the chieftain or any other nobleman of
the Bakrites, failing which an ultimatum of war would
be given. As the murderer had escaped, the peace
negotiations were frustrated. Soon a war began in
which most of the branches of the tribe of Rabi'ah took
part on the side of the Taghlibites against the Bakrites.
But many branches of the Bakrites themselves remained
neutral ( i'tazalat ), and took no part in the war of their
kinsmen. Such were the Yashkur, the Tjl, the BanG-
IJanlfah, and the BanO-Qais-ibn-Tha'labah. Particularly
280
MUSLIM CONDUCT OF STATE
the chieftain of the last named branch al-HSrith-ibn-
‘AbbSd, who was a famous knight and poet, guarded
bis neutrality (i'tizal), in spite of the remonstrances of
bis relatives. This was the prime reason why many
other clans kept aloof from the war, and said : O ye
people of Shaiban ! Ye have oppressed your brother
(Taghlib) and killed your own cousin, the prince (t.e„
Kulaib). We shall never help you.
In the course of the protracted war, one of the
Bakrite chiefs, who was born during the war itself,
succeeded in persuading most of the tribes, who had
remained neutral, to take part in the conflict. Only al-
Harith-ibn-‘Abbad kept back. Yet when his own son
was treacherously murdered, he too forsook his neu-
trality, and it is recorded that he composed the following
couplet on that occasion :
I kept back from the Bakr thinking that they would
behave reasonably.
Yet the Taghlibites themselves do not want that I
remain neutral ( i'tizali ).
On the other hand, many Taghlibite clans had also
remained neutral ; but slowly all were forced by circum-
stances to take part in the war, which at last involved
all the branches of both the Bakr and the Taghlib.
(wJAS 3 jL-i by an anonymous author, MS. British
Museum.)
3 . When the tribe of £buza‘ah emigrated from Yaman
to the North for fear of the breaching of the dam of
Ma'rib, their chieftain, ‘Amr, sent his son to Mecca, in
order to make their request of its inhabitants :
Allow us a short stay in your territory until our
people, who have gone in search of colonies to ‘Iraq
and Syria, come back.
The Jurhumites of Mecca would not entertain the
TECHNICAL TERM FOR NEUTRALITY
281
idea, and a war ensued. One Jurhumite chief, Mudad,
remained neutral ( i'tazala ), and even left Mecca along
with his family, for the time being. The Khuza'ites had
the upper hand. The Isma'ilite clans had also remained
neutral ( i'tazalu ) in the war of the Jurhum and
Khuza'ah. They then came to the victorious Khuza'ites
and asked permission to live in Mecca. This was
granted. On hearing this, Mudad also sent emissaries
to the Khuza'ah and requested the same proving his
neutrality i i'tizalihi ) in war. But the Khuzg'ah refused
to grant the request. >l£s, XIII, 110).
4. Qusaiy, the ancestor of the Prophet, had become
the supreme chief of Mecca, with the help of his clans-
men of Qudg'ah. After his death, his functions were
distributed among his several sons. But rivalry divided
them and each party sought foreign allies. All the
local tribes joined with one or the other ; only two
tribes remained neutral cr* ly l and
sided with neither of the two parties). (.Ibn-Hisham,
pp. 84-85)
In Hadlth literature also, there are things of interest
for the subject. The following two citations have been
taken from Bukhariv (cf. ch. Manaqib , 11, and Muslim
cf. ch. Imarah, 51, and concern the practice of the
Prophet).
(a) The Prophet is reported to have said that soon
civil wars would ensue among the Muslim community,
and the pious believer would be the one who would sit
at home during the unrest and would take part with
neither faction (i'tazala). The narrator adds, it was
owing to this hadith that many a pious Muslim remained
neutral during the wars between 'Ally and Mu'awiyah.
(For instance, Sa'd-ibn-Abi-WaqqSs, according to
Muslim, 53 : 11, Ibn-Hanbal, 1, 168, 177 ; etc.)
282
MUSLIM CONDUCT OF STATE
(b) The Prophet is said to have predicted that towards
the last days of the world, a terrible fight would break
out between the believers and the Rumls (Westerners).
The RGmis would make this offer to one Muslim group :
“ Let us fight alone against those Muslims who have
captured our wives and children.” The Muslim group
would reply : “ No ! We cannot desert our brethren.”
This war would seal the end of the power of the Rflmis.
CHAPTER III
Teachings of the Qur'an on Neutrality
SO far our data have dealt with matters of more or
less historical perspective. For their special importance,
the relevant verses of the Qur’an may be collected in this
chapter.
(a) Hast thou not observed those who are hypocrites,
(how) they tell their brethren who disbelieve from
among the People of the Scripture : If ye are driven
out, we surely will go out with you, and we will never
obey anyone against you, and if ye are attacked we will
verily help you. And God beareth witness that they
verily are liars. (For) indeed if they are driven out they
go not out with them, and indeed if they are attacked
they help them not, and indeed if they had helped
them they would have turned and fled, and then would
not have been victorious, (59 : 11-12).
In these verses it is predicted that the hypocrites
among the inhabitants of Madinah would not help their
friends (the Jews of BanQ-an-Nadlr, cf. Tafsir of Tabariy,
Vol. 28, p. 29), but would remain neutral in case of fight
with the Muslims.
Much more interesting are the following passages,
which advise the Muslims to take care of certain tribes
who had remained neutral and had not helped the enemies
of Islam in their fight against the Muslims ; they also
advise drastic action against those who violated their
neutrality*
(b) Excepting those of the idolaters with whom ye
284
MUSLIM CONDUCT OF STATE
(Muslims) have a treaty, and 'who have since abated
nothing of your rights nor have supported, anyone
against you. (As for these', fulfil their treaty to them
till their term. Lo ! God loveth those who keep their
duty (unto Him'. <9:4. Cf. 8 : 58-60'.
(c) God forbiddeth you not regarding those who warred
not against you on account of religion and drove
you not out from your homes, that ye should show them
kindness and deal justly with them. Lo ! God loveth
the just. God forbiddeth you only regarding those who
warred against you on account of religion and have
driven you out from your homes and helped to drive
you out, that ye make friends of them. Whosoever
maketh friends of them — (all) such are wrong-doers.
(60 : 8-9).
The most important verse is perhaps the following, in
which even the term i'tizdl has been used :
(d) What aileth you that ye are become two parties
regarding the hypocrites, when God cast them back (to
disbelief) because of what they earned ? Seek ye to
guide him whom God hath sent astray ? He whom God
sendeth astray, for him thou (O Muhammad) canst not
find a road. They long that ye should disbelieve, that
ye may be upon a level (with them). So choose not
friends from them till they forsake their homes in the
path of God ; 1 if they turn back (to enmity) then take
them and kill them wherever ye find them, and choose
not friend nor helper from among them, except those
who seek refuge with a people between whom and you
there is a covenant, or (those who) come unto you
because their hearts forbid them to make war on you or
to make war on their own folk. Had God willed, He
could have given them power over you so that assuredly
1 That is, migrate to Muslim territory.
TEACHINGS OF THE QUR’AN ON NEUTRALITY 285
they would have fought you. So, if they remain neutral
regarding you (ttazalukum) and wage not war against
you and offer you peace, God alloweth you no way
against them. You will find others who desire that they
should have security from you and security from their
own folk. So often as they are returned to mischief
they are plunged therein. If they do not remain neutral
regarding you (lam ya tazilukum) nor offer you peace
nor hold their hands, then take them and kill them
wherever ye find them. Against such We have given
you clear warrant (4 : 88-91).
CHAPTER IV
Cases and Treaties of Neutrality in the Time of the Prophet
and Orthodox Caliphs.
THE Orthodox practice conies only next in importance to
the Qur’Snic prescriptions. A few typical cases may be of
interest.
1. Cases.
(a) The Jewish tribe of BanO-an-Nadlr was allied to
the tribe of Gbatafan, and had also secured the promise of
help on the part of the neighbouring Jewish tribe of Banu-
Quraizah. Believing in the aid of these formidable allies,
the Bana-an-Nadir refused in the year 4 H., to comply
with the request of the Prophet, under treaty, to contri-
bute towards the payment of the blood-money of some of
the allies common to them and the Muslims. Consequent-
ly they were besieged in their fortresses. The BanQ-
Quraizah, however, remained neutral (itazalat), and
rendered no help to the Banu-an-Nadlr. And similar was
the attitude of the Gbatafan. 1 *
(b) Forced to quit Madlnah, the Banu-an-Nadlr migrat-
ed to and settled in Kbaibar. In view of their intrigues 3
with the Meccans and others, the Prophet took the
initiative to nip the danger in the bud, and led an expedi-
tion against gbaibar. En route, he sent an envoy to the
Gbataf&n, who were allies of the Banu-an-Nadlr, bidding
1 Ibn-Sa d, 1/2, p. 41.
* Idem, pp. 47, 66 ; Hist, of Tabariy, pp. 1556, 1575-76 ; Mas’Gdly,
Tanbih, p. 250.
CASES AND TREATIES OF NEUTRALITY
287
them not to take part in the affairs of the Muslims and the
Jews. The Qba$afanids said that they would not desert
their friends in this time of need. The tactical march of a
detachment of the Muslim army against their settlements,
however, persuaded them of the necessity of remaining at
home and giving the Prophet a free hand in his designs
against Khaibar. 1
(c) During the unrest of apostasy in some parts of
Arabia, on the death of the Prophet, a Yamanite chief,
Qais, sent a message to another chief, Dhu-al-Kula 1 . to the
following effect :
The Abna (t.e., the Persians domiciled in Yaman) are
but intruders in your country, and are come to you
from a foreign land. If you leave them (at your side),
they will dominate you also. Therefore I think it
right to kill their chiefs and to expel the rest from our
country.
Dhu-al-Kula and his partisans, however, refused this and
neither co-operated with him nor helped the Abnd\ but
remained neutral ( i'tazalat ), saying : We have no con-
cern with all this ; do as you like. 8
(d) Al-Jarud had embraced Islam in Madinah. When
the Prophet died, JarGd’s tribe, ‘Abd-al-Qais, also intended
defection. He warned his people not to do so, and
consequently this tribe remained loyal to Islam and did not
take part in the struggle that ensued between the Muslims
of Bahrain and the rest of the tribes of Rabl'ah.* This
neutrality of theirs was of considerable importance.
2. Treaties.
As for treaties which provide for neutrality, or state
1 Ibn-Hifh&m, pp. 757-58; Hist, of Tabarly, p. 1575 et seq.
* Hist, of Tabariy, p. 1990.
* Idem, p. 1958 et seq.
288
MUSLIM CONDUCT OF STATE
documents which contain reference to neutrality, they are
numerous even in the early days of Islam. A few of the
more important may be quoted with interest.
(a) When the Prophet migrated to Madinah, and
constituted there a city-state, he took the initiative of
consolidating Muslim power by entering into alliance with
non-Muslim Arab tribes living around Madinah, especially
on the caravan-route of the Meccans to and from Syria.
The following treaty with a chief of the Banu-ipamrah
dates from the month §afar of the year 2 H.
He (i.e., the Prophet) will not attack Banu-ipamrah
nor will they attack him nor swell the troops of his
enemies nor help his enemies in any way. 1
( b ) Soon after, other families of the same tribe were
rallied, and a treaty of mutual aid and neutrality in parti-
cular cases was concluded :
With the name of God, the Compassionate, the Merciful.
This is the writ of Muhammad, the Messenger of
God, in favour of the Banu-Pamrah, assuring them the
security of their persons and their properties ; that
they may count on (his) help if anybody takes aggressive
action against them, except in case of fight in the name
of religion. This assurance is valid so long as a sea
wets the shells. Similarly, when the Prophet requires it
of them, they will help him ; and they pledge for that
God and His Messenger. To help them will depend
upon their loyalty and piety.*
(c) Another tribe living near the sea-coast of the Red
Sea was the Banfl-GljifSr. They were also rallied about
the same time, and their treaty provided :
Help is assured them if anybody attacks them aggres-
sively. If the Prophet requires their help, they will
1 Ibn-Sa'd, 2/1, p. 3 ; Slrah of 'Aliy al-Qarl (MS. Istanbul), ch. Ghazawdt
1 Ibn-Sa'd 2/1, p. 27 ; Suhailiy, II, 58-59.
CASES AND TREATIES OF NEUTRALITY
289
help him, and it is incumbent upon them to help him,
except in wars waged in the name of religion. This is
valid so long as a sea wets a shell. 1 * * *
(d) When the city-state of Madlnah was constituted,
there were many Jewish settlements in the eastern suburbs
of the Arab city. They also adhered to the confederal
city-state, and agreed among other things that s
§ 45. If they (the Jews) are called upon to join a
peace and adhere to it, they will do so and adhere to it.
Similarly if they ask it, the same would be incumbent
upon the Muslims. The wars waged in the name of
religion are excepted. 8
(e) It was probably in the year 5 H. that the Prophet
concluded a treaty of alliance and neutrality with the tribe
of Banu-‘Abd-ibn-‘Adly, regarding which our historians
record :
The Prophet received the deputation of the Banu-
‘Abd-ibn-‘Adiy . . . They said : O Muhammad ! We
are the inhabitants of the Holy Circle (around Mecca)
and we are the mightiest of all those who live there.
We do not want to fight you. On the other hand, we
are prepared to help you in your expeditions, except
against the Quraish of Mecca. For we would not fight
against the Quraish. 1
(f) In the famous treaty of Hudaibiyah also there is
provision for neutrality. In fact an expression is used
there which according to lexicographers has different
significances. I mean the word isldl. It signifies the un-
sheathing of a sword as well as violation of neutrality and
secret help to the enemy of the other contracting party.
1 lbn-Sa'd, 2/1. pp. 26-27.
* For the complete text of the Constitution, see Ibn-Hisham, pp, 341-
44; AbH-‘Ubaid, Amwal % §. 517 ; Ibn-Kathir, Biddyah f III, 224-26; etc.
* 2/1, p. 48.
290
MUSLIM CONDUCT OF STATE
That the word islal, in the treaty of Hudaibiyah, has been
used in this latter sense, is borne out by two other treaties 1
concluded in the early days of the Orthodox Caliphate,
and it is conclusively proved that it was a technical
term.
The relevant section of the treaty of Hudaibiyah is the
following :
And they both agree to put down fighting on the
part of people for ten years, during which period the
people are to enjoy peace and refrain from (fighting)
each other . . . And between us is a tied-up breast ( i.e .,
bound to fulfil the terms), and there shall be no secret
help violating neutrality, and no acting unfaithfully.*
The treaties just referred to are the following :
( g ) With the name of God, the Compassionate, the
Merciful.
This is the writ of Suwaid-ibn-Muqarrin in favour of
Farrukhan. the Commander of Khurasan, concerning
the enemy territories of Tabaristan and Jlljllan.
Thou art assured of the protection of God, exalted is
He, provided that thou dost prevent the rapacities of
the robbers of thy country as well as of the people
adjoining thy country and that thou dost not give
asylum to any rebel against us. And thou shalt pay
the (Muslim) commander on the border of thy country
a sum of 500,000 drachmas of the currency of thy
country.
If thou dost this, it will not be lawful for us to attack
thee or traverse thy country or enter it without thy
permission. With permission, however, we shall have
a safe passage in thy country, and the same shall be
1 Cf. infra , under g and h , which immediately follow ; cf. also.
£>L*J c. v . % 41 J^***”.
* For complete N text, cf. supra , section XXV.
CASES AND TREATIES OF NEUTRALITY
291
observed regarding thy passage.
Thou shalt not give asylum to any rebel against us,
shalt not secretly help any enemy of ours ( l*J ojl+S V 5
•«** ^1 ), and thou shalt not act unfaithfully. Otherwise
there will be no pact between us and thee. 1
(h) This is what Nu‘aim-ibn-Muqarrin accorded the
chief of the province of Rai’y :
Provided that you act in good faith, serve as guide
(to us), do not act faithlessly, and do not secretly help
(our enemy in violation of pledge).*
The following clause is taken from the treaty with
the ruler of Nubia, concluded by a Muslim governor of
Egypt of the time of the 3rd Caliph, ‘Uthman :
You, O Nubians, are assured of the Protection of God
and His Messenger, Muhammad, the Prophet. That we
shall , not wage war against you, nor prepare for war
against you, nor attack you so long as you observe the
conditions of treaty between us and you . . . But it will
not be incumbent upon the Muslims to drive away any
enemy who may encounter you, nor to prevent him
from you, between the limits of the territory of ‘Ulwah
and Aswan. 3
(j) Qais-ibn-Sa‘d, the governor of Egypt, addressed the
following letter to the Caliph ‘Ally, during the civil wars
of the time :
With the name of God, the Compassionate, the Merci-
ful.
I have to inform the Commander of the Faithful that
there are people here who want to remain neutral
Cmutazilin). They have requested me not to take
1 Hist , of Tabarly, p. 2659.
3 Hist . of Tabarly, p. 2655. Cf. treaty of Jurjan, idem, p. 2658, for,
similar provision »>“*!
3 Maqrizly, Khitat, I, 200 (ed. Bulsq).
292
MUSLIM CONDUCT OF STATE
action against them but to leave them unmolested until
the situation clears* 1 *
(fe) ‘Ally replied :
Proceed towards the people thou hast mentioned in
thy letter. If they obey, as other Muslims, it will be
all right. Otherwise punish them.
The governor replied :
I wonder, O Commander of the Faithful, how couldst
thou order me to fight against a people who are keeping
aloof from thee and are giving thee a free hand to fight
thy enemy. If thou wagest war against them, they shall
help thy enemy against thee. So hear me, O Com-
mander of the Faithful, and refrain from taking action
against them. 9
(0 Extract of the open letter of ‘Ally, addressed to the
rebels and apostates of Banu-NSjiyah :
I invite you to abide by the Book of God and the
practice of His Messenger, and to act righteously as
God has ordained in the Book. Further : Whoever of
you returns home to his people and keeps aloof and
observe neutrality ( i'tazala ) vis-a-vis this nihilist and
robber (i.e., Kljirrlt, the chief of the Banu-Najiyah),
who has come forward to fight against God, His Mes-
senger and the Muslims, and is doing mischief in the
land— such will be assured of his person and property.
But whoever follows him to fight against us and
disobeys our authority, we shall seek help from God
against him. 3
(m) In the year 28 H., the Muslim armies attacked
Cyprus. A peace was concluded on the condition :
1 Hist, of Tabariy, p. 3244. a Ibid.
• Hist, of Tabariy, p. 3435 et seq.
CASES AND TREATIES OF NEUTRALITY
293
That the Muslims would not attack the people of
Cyprus but at the same time they would not defend
them if any other power attacked them . 1
Such examples may be multiplied, but unfortunately
none of them describes the rights and duties emanating
from the status of neutrality, which were understood.
For these we have to refer to practice. Some such
things are collected in the following chapter.
* Hist, of Tabariy, p. 2826.
CHAPTER V
Laws of Neutrality according to J urists
FROM the oregoing chapters it must have been clear that
the notion and the fact of neutrality were not unknown to
early Muslims. As the Muslim jurists do not treat the
question in a separate chapter, but describe its provisions
partly in the laws of peace and partly in the laws of
war, it is not easy to glean all that is relevant to our
purpose here. It must be admitted that the laws of
neutrality had not so much developed in olden times
as during the last fifty years, apart from the fact that the
mighty onslaught of Nazi Germany has again thrown these
laws of neutrality into the melting pot. 1 Still the few
passages I came across in the writings of Sarakhsiy, the great
commentator of Shaibanly, may be reproduced here with
profit. They were gleaned in a hasty perusal, and can by no
means be considered as the only passages to be found in his
writings or the writings of other jurists.
It is to be pointed out that these few random quotations
cannot be expected to construct a whole system of laws of
1 Not to utilise a neutral territory as a base of operation and not to
prepare there a warlike expedition— such are the two basic principles of
modern international law on neutrality. It is to be noted that even in the
presence of the League of Nations, England required mandated ‘Iraq and
protected Egypt to concede to her the right of maintaining troops in and
transit through their territories before she could recognise their indepen-
dence, in disregard of the basic principle of neutrality. German pressure
on neutrals for passage was therefore not a lead but only it followed the
precedence of the neutral ‘Iraq and Egypt in the World War of 1939. Cf .
also the treaty of Iran and Russia, invoked during the same war.
LAWS OF NEUTRALITY ACCORDING TO JURISTS 295
neutrality, namely, the rights and obligations of neutrals
vis-a-vis States actually engaged in a war.
(a) If a State has contracted a treaty of peace with the
Muslims and is attacked by a third State which made
prisoners (and enslaved them), and subsequently the
Muslims waged an independent war against this latter State
and captured the prisoners of their friendly State, they
would be slaves of the Muslims. For the third State had not
violated the jurisdiction of the Muslim State in capturing
them ... If the third state secures its capture, it will become
the rightful owner of the same . 1
That is to say, it will not be an infringement of neutrality
to appropriate the property of a friendly state if it was duly
acquired by a third state from whom it passed lawfully to
the Muslims.
( b ) If a Muslim citizen is staying in a foreign country
which has purchased the booty captured by a third state
from a fourth one, the Muslim citizen may lawfully purchase
that property (in spite of the fact that his State had remained
neutral in that war). For the ownership did vest in the cap-
turing country, and foreign countries do plunder each other
and acquire ownership of persons and properties. There-
fore it is lawful for the Muslim resident to purchase this
booty just as any other property owned by the country where
he is residing . 2
Similarly, if the country of residence of the Muslim
citizen had captured that booty from a third state, he may
purchase that booty. For the ownership was vested in it on
account of securing that booty ... If the Muslims had
entered into a treaty of friendship with a non-Muslim
country, which was attacked and plundered by a third state,
1 Sarakhsiv. ^ , IV, 134-35.
* SarakhsIv.h»M«-«H X, 97.
296 MUSLIM CONDUCT OF STATE
the Muslim citizen residing in the former may lawfully pur-
chase booty from the latter . 1
(c) If Muslim citizens are staying in a foreign country
which is attacked by a third state, they must not fight
against that third state (which is at peace with the Muslim
State) . . . except when they find their ownselves in danger.
In this case they may fight against that third state in self-
defence (not in breach of the neutrality of their own
Muslim State) . . . The precedence is provided by Ja'far, the
cousin of the Prophet. He had taken refuge in Abyssinia
when that country was attacked by a neighbouring monarch.
Ja'far was prepared to take up arms in favour of the Negus,
because he was afraid that the new ruler might not offer
him the same asylum . 2
(d) If the subjects of a foreign country come to the
Islamic territory by permission and intend to proceed to a
third state at war with the Muslims, in order to join forces
with them against the Muslim State, passage will be denied
them. For the passport secured for them only freedom of
stay and freedom of return to their own country. Beyond
this, the Muslim State is right in denying them all that is
harmful to the Muslims . . . No doubt if one or two of them
want to proceed to the third state for commercial purposes,
this may not be denied them. But the case is different when
they are a formidable force . 3
(e) A case of something like benevolent neutrality, per-
mitting public armed forces of one state to pass through
Muslim territory, seems to be mentioned in the following
quotation :
If they are formidable force, and enter Muslim territory
by permission in order to cross to another territory to
1 Sarakhsiy, Js^UI , x, 97. * Ibid., X, 97-98.
* Idem. ryJd \ , IV, 121-22.
LAWS OF NEUTRALITY ACCORDING TO JURISTS 297
fight their enemies, and they were attacked, while in the
Muslim territory, by an enemy, the Muslim State is not
obliged to come to their rescue even when it is in its
power. The case is different when non-Muslim subjects
of the Muslim State are attacked by foreigners, when it is
the duty of the Muslim State to protect them.'
(f) Regarding the enemy ship with neutral goods, and
neutral ship with enemy goods, our authors lay down a
general principle that the safety of the owner renders the
property safe
* * * *
Here ends my humble investigation in the theory and
practice of Muslim Public International Law. Although I
have spent several years on the subject, yet I, more than
anybody else, am conscious of many of its shortcomings ; and
I know that many more things are to be read before exhaust-
ing even the material existing and known to me. In the
course of one’s daily reading, many important works, not
known before, come to one’s knowledge, but, alas, seldom is
it possible to consult them in our Eastern surroundings,
especially when they concern old and out of print Continen*
tal works. Diffidence would have prevented me from
publishing this monograph even after these dozen and more
years of writing and rewriting, but at last the consolation
came to my mind, that —
iji o fir ys
i IV, 109.
* Idem, 1, 142.
APPENDIX A..
Instructions to Commanders.
1. By the Prophet.
(a) General:
Translation :
Whenever the Prophet appointed a commander over an
army or detachment, he enjoined upon him to fear God
regarding himself and regarding the treatment of the
Muslims who accompanied him. Then he used to say :
Fight with the name of God and in the path of God.
Combat those who disbelieve in God. Fight yet do not
cheat, do not break trust, do not mutilate, do not kill
minors.
If thou encounterest an enemy from among the Associa-
tors (infidels), then offer them three alternatives. Which-
ever of these they may accept, agree to it and withhold
thyself from them :
So call them to embrace Islam. If they accept, then
agree to it and withhold thyself from them. Then ask them
to immigrate from their territory into the territory of the
migrants 1 (i.e., Muslim State), and inform them that if they
do that they will have same rights as the migrants and same
obligations as they. If they refuse to migrate, then inform
them that they will be considered as bedouin (wandering)
Muslims, the same Divine laws being obligatory on them as
1 For its significance and a detailed description of the colonial policy
in the time of the Prophet and the Orthodox Caliphs, cf. my article
in the quarterly f July 1940, Hyderabad.
APPENDIX A
299
on other Believers, except that they will not benefit by
booty and other State income unless they join forces and
fight along with the Muslims.
If, however, they refuse, then call them to pay the jizyah
'protection tax). If they accept, then agree to it and with-
hold thyself from them.
If they refuse, then seek help from God and combat
them.
If you besiege the people of a fortress and they agree to
submit on the condition that you assure them by the pledge
of God and the pledge of His Prophet, then do not do that ;
but assure them by your own pledge and the pledge of your
companions. For it is much less grave if you violate the
pledge of yours and of your companions than the pledge of
God and that of His Messenger.
If you besiege the people of a fortress and they agree to
surrender on the award of God, then do not let them sur-
render on the award of God but on your own award. For
you cannot be sure whether you have acted regarding them
in conformity with the award of God or not.'
•
( b ) To 'Abdar-Rahman-ibn-'Awf :
Translation :
Then the Prophet ordered Bilal to hand over the banner
to him. He did so. Then the Prophet eulogised God and
asked for His mercy upon himself, and said : O son of
‘Awf ! Take it. Fight ye all in the path of God and combat
those who do not believe in God. Yet never commit
breach of trust nor treachery nor mutilate anybody nor kill
any minor or woman. This is the pact of God and the con-
duct of His Messenger for your guidance. 2
1 Muslim, Sahifi, V, 139-40.
2 Sxrah of Ibn-Hisham, p. 992.
300
MUSLIM CONDUCT OF STATE
(c) For instructions on other occasions, by the Prophet,
cf. Tirmidhiv. 14 : 14, 19 : 2 and 48 ; Ibn-Majah, 24 : 38 ; ad-
Darimly, 17:8; Malik, 21:11; Ibn-IJanbal, I, 300; III,
440, 448 bis ; IV, 240 bis ; V, 276, 352, 258 ; Zaid-ibn-‘Aliy,
No. 820
2. By Abu-Bakr.
(c) To Usdmah, while proceeding against Palestine :
Translation :
Then Abu-Bakr went and met them (in the camp),
ordered them to proceed, and accompanied them on foot
while Usamah (the commander) was riding and Abu-Bakr’s
camel was being conducted by 4 Abd-ar-Rahman-ibn-‘Awf.
Usamah told him : “ O Successor of the Messenger of God,
either you shall ride or I shall alight.” He replied,
“ Neither shall you alight nor I ride. What does it matter
if I walk awhile, for every step of the warrior of God merits
him seven hundred pious deeds, raises him seven hundred
grades and effaces for him seven hundred sins.” After
reaching a certain distance, he said : “ If you can spare
‘Uma to help me, then do that.” And he did. Then Abu-
Bakr said :
“ People ! stop. I enjoin upon you ten commandments.
Remember them : Do not embezzle, do not cheat, do not
break trust, do not mutilate, do not kill a minor child or an
old man of advanced age or a woman, do not hew down a
date-palm nor burn it, do not cut down a fruit-tree, do not
slaughter a goat or cow or camel except for food. Maybe,
you will pass near people who have secluded themselves in
convents ; leave them and their seclusion. And it may be
that you pass near people who will bring to you dishes of
different foods. If you eat one after the other, then utter
APPENDIX A
301
the name of God over them. And you will meet people the
dressing of whose hair looks as if the devil has made a nest
on the top around which they have something like turbans.
So pierce them with swords.
“ March, with the name of God. May God reward you by
lance and plague ! ” l
Another transmission of the same :
Then he stood in the army and said :
“ I enjoin upon you the fear of God. Do not disobey,
do not cheat, do not show cowardice, do not destroy
churches, do not inundate palm-trees, do not burn cultivation,
do not bleed animals, do not cut down fruit-trees, do not
kill old men or boys or children or women...”*
(d) To the Commander Yazid-ibn-Abi-Sufyan:
Translation :
When AbO-Bakr ordered Yazid-ibn-Abi-Sufyan to
proceed to Syria, AbQ-Bakr accompanied him giving him
instructions. Yazid was riding and Abu-Bakr was on foot.
Yazld said :
“ O Successor of the Messenger, either you shall ride or
I will alight.”
He replied :
“Neither shall you alight nor I ride. I reckon these
steps of mine to be in the path of God.
“O Yazid! You will soon arrive in a country where
people will bring to you all kinds of food, so utter the name
of God at the beginning and at the end. Further, you will
come across people who have secluded themselves in con-
1 Hist . of Tabariy, pp. 1849-50.
* Kanzul-ZJmmal by ‘AlI-al-Muttaqiy, Vol. 2, No. 6261, on the
authority of Ibn-ZanjUeh.
304
MUSLIM CONDUCT OF STATE
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,3^ C?'^ a * 5 a)-a» lift ffcMv* lyb O^ *5
JwXmJl^ ^-*Jl 3 a-a^jS 3 ^a) v ^x^LI^a#«1
oUl^JI^ oJ^UvU^ p<yal\ gi) } {4**1+
^ ^ * A*^ili vi*bl syel 3 *£«aJI ^ *
^ 3*1 jJ# ^ ax* jI£)M| gilyi 5^31^ <iXx* (J**^b J»Uj)
£j >13 3 X&yaiJl ^-o igfhXx* al*.^ U 3 3 ^ c^ 3 W
3 siXJi^ijS A&l ^**1 3 * J\A^x-aJl aJjUl^ 3 JviUMl
> 10 ^ j*\ ^JUJI U gJ^r <3 v^>^* oUaI 3 3
. d&XxS aW» 3
- I*x* r* 1 * ^T 4 ** 5
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£ Ityirnx jli 3 L s ui 0 — ^ ir <J» ^ ir j»$ o-* ^•buXJjiw
.(|*V 1 ^ CU^u J^AibLwl (3^3^ a*jK*
306
MUSLIM CONDUCT OF STATE
(6) To the Commander of Sea Forces.
is**
} jJJJ\ <JI U I Job
— : 5
jlil J ^LjI} i/uUlo ^ iAX»U> j «*3ll jjyuo <^«l
5 iJi>— <• _j _x)2 5 ^■^•1 (3— JJ - <aJI*»1 (3 (3^
^Cbl^Jo yiL j L»^l y *J b A m i) t^il ^ » j*qa
S^Mri 5 ^ iAXaSXaU (J j) J Uar** £>U»A-i£JI jJj 3
<3 ^Lmi ^ vXxjL) £j* *ajuc V ^J 5 y v/o yi-Mi
ftj/of ^ # Uyu< ^ LoUi UU Jxtfl ^ UU\ jkiLl
Jfi c> j 1 &~*j\ ^ J* j fe'JJI >5 jjdj 0 I
- ii-oxJI J la*
V^iXm wXxi.1 AA4 V ^L Alb £)3^M vD^^i 3
• l j «»***3 vZj t »UaJl^ vlbla»U»l \Sy* c?* A*J\
y «A*Lu y «Aiw ^OjJ AxLj-mI ^1 ^1 ^
~ 0 y[+sX}\y o0.yi |^l ^3 i/OtX-Sl ^ «AjUI^ ^ (AjJIjSXJ
v> 5^i 5 J=y- *
$ AXt^ vJjr-**^. t^)l s^ol y * fj^y ^Ayol
X} 5 Ua^s v ^**3j«U ^1 SC 13 A**»jlatV*
I • A • • |M
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l^S^T 3jarvj ^ ^xa* aLiwxJLl s*+$\JAjd\ jJLjlZ* ^>1 tj*\ y
4x**^. y Uw** vl>^ l* \*Jj**^. } ^IbaJl^^u ^
.u^svy'o- c i±yi ^ ^ i ^tuji jt ^1 ^
v-i^J fk-? viU^o j o' $
0 y*^-\y XiUoMI^ ^3*>J 1^ A^yoxJl^ jjlvX*aJl jlxa»t
^^0 JJJwoJb ^1 l^3b )) ^yla* A-^liVo y AJ^laLb y AJkiU* ^
APPENDIX A
307
fl>$ VU fir&Aj o' 9 - J>V\ £j/* * jgjLI
jUsuVb oUxU £)y+y » u j yiUI filjil Jl <aj
'IWl
<3 V^ ^kUJJI V o' */*' 3
li)l^ lytl* Ul> VI >~*S\jL\ jj (^Alj ublvflJI
iWil Jmolil y> lA*< aI^U (^4 (^1 J *
« b iSo^l ^jjJI L I* i*l ^ b I <«« n* *t»l j Xu JjiX«sl >UJjVl j L*a> ^
l^3Vl >aj J u^ iLwl iy»J (_^l y .1 A»l*<o <3 jko ay *1 ^
•Uo ^ Ug^&su s jkft^ o^ijll^ iiLiJUj jo jki. 1 ^
^ Ou^litJll OwJlsvmO ^ ‘ '^3 ^ l^JkiJai » I^juJIj
3 doSlyJI ^ , ‘l4^iw 5 ^liJU ,5^1 ^yLilj ^ 1-*^.
^-1* ii ^xKJI_y ^ |jb > ^kJjjJI^ «aJ CX*
O^i CJ* ?*zr> Vj jj yL> j'Xoi V Cl* f4»i* ^ L^"
- A.L. J-»-*Jb ^1
XsvWVl (3 AJjba. ^lXjiJI jwii!) o' 0 * o' *.*l 3
j^.V ^iki o' j\ fV-wVl Jpj I o“ <»— >^i.| Olj>l £r* ^yit j\
<cXa.^ ^ ^ ‘^AkXb Jl (JJ^bJl A-*lSI 3 ' o-“* t-^“ £>*
ist^yt 5 o yit. ,*-.51* btA^> ^UJI £j+ </UMibk. I* ^ l«X* j^* f»x5l »>3
- £k* 5 VlSb oOuta. }
U^Ui^ J,^ U»i» '/'*■' r““i o' V' ^
* ,A.*1*U VI J* am £^ivj V ,_,**» AAol^ib 3 <AASX^a*J Jjii
s,!**-. b^-xijut ^ cxy^i. OlS^Vl o'* (3 Ut^I* 3
ljj-1' AkiU>l J\ ik)ya4 iiiMblaM Jbyu A)j W4
3 J^ o'~M 9 bijJI o- U»ii u J* ‘14,3 J**jl 5
5 U»**;k 3 c^ 1 v^Wl^iLj ^ U^
Jscj o' 9 ‘^>*5* > 9 ^' o* 9 ^' v*' 5
308
MUSLIM CONDUCT OF STATE
o' cr* t3^*i ^ 3 fW O*
t\j** ) yfS))*o } _J tftJU. O*
-AJ>I;I j
U J*»l 5 . eJ'bl t f I 5 eJuJI j^JLI^ U_»
* _5 O'***®* ***** O* 5 _5 <iXa*i
•XA»I$ iiCJ| tjJLwl U 51* £ i^il «AJL* L* J 1 eOli^l j «iXJLiy
» <£&*)# tA*»
•o^* erf o^* i
(Ui ^loJJ E iyUv^)
APPENDIX B.
B ibliograhpy
1. Arabic, Urdu, Persian and Turkish Works.
N.B .— The subject requires an exceedingly wide range of
sources : all the works on the exegesis of the Qu’ran,
on I?adl£h or records of the sayings and doings of the
Prophet, on Islamic history, political science, law,
tactics and strategy, and many other branches of
Muslim lore. We give first the more important
Arabic manuscripts followed by printed works in
Oriental languages, arranged in the alphabetical
order :
(a) Arabic MSS.
jyl ^ ^ i/OiXaJui A)la>
fAI (3 All Ajy&U ojlas^JI AxWjJI
^ Cfi Cfi l
• ( l r) fij d <£* csjb l Liu)
UJty oi
'(rAn) Ui^o bf mU. (v*v iax*«
ObbsL (l*r* JjjXJl) £jyUI (3
M fjbi j olj iUl) j dj 5 <3 iib
» J^ulwl (3
* (lAI Wiiil t3^ xj l) j)IWim)I (^iwaiil (^1 iX-j» ' fUHJ Jua^Jl
310
MUSLIM CONDUCT OF STATE
Aili. y Jj-JUL-I i ^50 JLil Ud»L_* y l_jo>obj
. ibj jj-fcyi </i*jL<oT
O U m ^ ll y^LmVl^J— *o u* AaSI^JI <— (^j*
. JUOJLI JLULJl ‘^^jJ'Jl
AiksL fUVl * ^ »—jli\>l ^_A j LasX^JI ^*01
- l IF*) <►*; ^ £,ijJI J5
(Vor XL* |
viitf j J_*olw» 0 i Uiyobl 5 y*A i^SLUl Ax*_SLJ\ Axki.
- ,j)yi.l ^j\ kw l^Jo IS j_5j0.fr OIjLki*
ti -ov a^ (rrr ^jo^Ui f UU 0 iyj\
* JikiUml yi
C^-« J^ J^ J> o* L* J* C/WjJl ^3
XiJ^tJl ^Ijil ^ o «J.l jjj'J iAtf y A J I
^ (|A0r) ^. 5 ^ J^ajDuiI Lib iM^ui iaJuL * VAV X^»
• ^^mOjXj Aiyo jJ\ (3 «/w»b X-xka.
A~kk nr <3yU-Jl ^iljo^I wwjLivJJ ^IaJIjc^Ju
(rrv 3I rl* (3yl»JI) yuta> ^3 a* 1 jolJ Aolx&JI iajuJLo 5
JuL-L\ *j.» JJlx y J^xilwl 0 » yiy^i^S & A*»ili ajJocL
5 >jyk~+S yb J>».1^ <fi*yy y (j*
cjUa ja^is Jl
0 i 2 *U. Jo Aikk ‘JliofrjJI oi^' O^iJ AjlSU^JI S^jJI
# 1 U »olwl
^ ;> x j.ib doLi (r*v) Ai- 0 iyUJi s>yiv_jt»
- (JJo.fr l^l£> ) jo^JI
£au 5 oyU J»;t J\ o ; t*KJ\ 0 1 2,x±wJl o^Jl XJL-yi
uui}) ^ ^ J*-t erf Jj j- o**-J U»*J' JU!
, (Lb^ Axka.) *|IT* (jiywJI Lfrfyv*'
APPENDIX B
311
^ i-aSli A^ba. 'JJIkimI ^\ o^*«j
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U*>**J0 jj**** ^ ***^ X~»iVI kX^-1 £?S ^f W J Jy-aO^I £ j£i
» vAilsi. l^uLS ^ J^ilL-l ^ OJjjb Aoba. (f»9o f*Ar
JUiK% J*oU~.l ^ W^juSo Juba. *J*U1 j**J oUrVl^wi
- V> o* ^ 5 ^l»
u* (f'VA ^y^-i\) ^iojAl '■J^*
-^i* 1**9- U-At^* Job
• ,_$o»x* Juba. ‘^U< Olj^fsx-* j*-*» (_,* Jwla. jOlxJt ^jUill
- J**»K-**l o* 3 bi^-obf L^j)
e ^\v_j^ ZJ £,l*.i\yL J* O-o^JI ^Jl c UjL. ^ *^Ul«U
'(IMIf 5 .)) JubsL^^ja^Jl o* ^
J^al iAOmJ ^ I |ir IAX«I JuLj^+JI UaJ^JI bs\j) J}*olxwl
* ( i*rr) (fj ^ixi»i) ^ .a^xju
fb«yj (Jmo^ii b^««. > , ji
£jl«>Jl Jj Juba. ‘ (1 A | (jiyUJl) ^wa. ^ wJl ^JoJI i ^ojl b* XL » J l
- J>^»Uu«1
Jo JUba ‘(o»r ,J^J\) oiOl^ilb^J b«ujl
« J^aJULmI g«la»
(PVA ,j>l*^li>JI (_jl> Cri JjjbJU £)lb^l JMww*
- JJfJjJ lAika
jwa^U JUba (rro ^iyLJI ^>U*JI ^ ai V,*iJLI
. >bTjj^*u (jjUJ.\ 2^b ^ igjii j oJ^JI ^ ^J^Jo
JU£UI JLo&U JUba. J^4rP»« <JJ^. ^Ubl 5 >lw«Ll Ji
• * (r*V0) jJu^lXJI J<ai
312
MUSLIM CONDUCT OF STATE
(6) Printed Works in Oriental Languages.
iiUli
-y*. gxk 'rOA ^yll) JxiAl .lyUl MilkJuJI
' (FO* _i) ^iLLJI JuJlkJUJI f K*.Vt
i* yJ iX^\4 4 oJ yll i Xy U y
<*•>35"^ Us-*-*^ SyLf ^ (9 Or t*j) ***£ Cj?
J-*l* A** <&1 f j*« £ji i/** O*
» g-J» » ^>J1 ^Lu>^ lAllt iSll 1^0 dill l Lb
• (VO | t_») gUUl f^l*t
JiiUil ^u) Jjjt^Jl.xy J*J ^ J^ol ^ ^U*t
-M i/ujUi^Ul Jl ^a.y } *I|TI* iujliJI iimxlJI fbLw »V5 jji
■X ^ jOJ IamImii *^Jl»Jl (3 fiXij
- il *T ;•**»- 2*J» ‘^yJl
J^U-\ Juki. (rV9 ui) e->Uo»
- X**IA1 u» JJ* c>f ***•
^y»Uu (A^olxSJt (ji JJ^Jl <a*su**J <aJj (f 00 i_i) k*Aa»vU glUt
» k a»l ae vU iAJ l lifJut J-J ^Ji
• (0*0 i_j) ^IjxU iiT^Wlt lAxyai yi w i I t j< UI
ojJjJt cjlji ^JKi^xJt ;Li.l J»*j u i ^AAlxi-JIJUanj
ia.ji.Xx* ia^ yi U,j j «A»ry g* Aiy~J g*J» (9AV *j)
* <aj u > u X5uI ^
- (VP 9 y * ) ^ ^ % x Jl Attl ^vlka^b LAJ^aJI
- *X^ft 5 (r|* ^^-kXJ Juoli. ^TyiJt O'j W i - J
^>yu~Jt 5 ‘ (irnJ) joVl^t 5 ‘^kJU JU.UL f ^UVl j^ ; ty
‘(vvpvj> s (rAr^i' ^yi*-Ji 5 ‘(rro^)
- (rr* vj) cyt ^ ‘ (rv9 ^j)
- (i | |F v_»t (jj^LbxJl <*3il (J,j) JUJUI1 «xt)l lAga*.
^w llj JuuMJtgkKUgJI JLoli. ^Xmj^ <ajlX* d3)l ^Le ^yuJl v^JtX*
BIBLIOGRAPHY
313
- (lAl i_») ^yUju^JI fUVJ yx£J| g*U.j^
liXJjt j*t ^) ^l_a?J| ,J^i * ^L-asL^M JpUa.
• jaL OliXXsVA f
iji.L— Ay s (|Ar v_i) '-*~ 3 > ^ gl^U
(3 fjtJI C < KU iMiXMI ^ All l—J | * a\I a- j AmLaIIi *
. JuiU^aJl JU.UI
JLaSUJl lA^kil cr* *j=»» jxk (H* ^j) yu >a» ^ i/L*|«x£J gtyLl
» <ajJL»a«J 1 JvjlaILI (3 </UwXJL^ J| <XjLUj J| ^ay» (J^xiUuoI ^3
ya* ij Juiij ji«-j. (r«r ti) f>T i>? elr^'
' t? 1 * O'* iV 1
- a | rri ^4> 'top Ai«iy ^» b » n
. A||*rf y<« jxk !*Xj jjXm) ^LmJIiAaaJ <a*YI </UaJuw _j
*yA> ( | AT (j) CXwl^> VlyjAH
- >bf j 3 (AjJUaJJI * 1—^1
vA^-aj \J>J$ cXU ^l^aswuJ V-jUia* JvjUo^iJl JUL^JI
* (Arv ui)
- (BfO^l Of i^i) ^-S^k^lxU iiSy\*<+ Jl glj***>
a (At Vv*i) oub^aSaJI
^^LaSJI JU jj vxJ\ fUso ^\ (A«aa)L^»maJ!
&jjb\& ^aL i 1 ^xaa) AjlIUI ^ ^ A) ^x «m>»xI I
* Ajro^
(f | A L-i) fki»A i-Aolci. ^ dSM Z^M»
^UJI. J\S^i\ 5 j ^ ,b Jj» • ^Ul , jAfc-J'3
(IP I v_i) CJ? Kj**y* 5 'J—* Oi\ 3
. tfO)LU ^ »^a.
0*o UL 3 tfUuJI *m*SS (3 y *»JI v-» > 1 jj 1
314
MUSLIM CONDUCT OF STATE
fU^U 2 l ( | ft 1*3) fl*Vl £}*
f L^U f^A ^ \F90 i^i) ^A*fcaL^4«JJ b^u*x-tJI ^ C (|V9 v-i)
^a-xsswJI ^ *(fT9 <* 3 ) ^ ‘(f^F ^ 3 )
j^XiLlI g\i sAAiji* j (09r s*3) X?.lX— . tJi ^ *(FtA i*3)
*( 0 f* t*3) sx£»j XjI*xj ^ *(A1 1 v-i)
La.1I Xjlxx^JI ^.UjU! $ ‘(09 f v_S) ^laL a> j
- (OAV 1 * 3 ) ^yLo&JU gSlx-oJI g^l oo ^ dojJbb S^jS l^J ^
(FAP <*3) ^yMAsL^MJl aaJI ^JLjuiJ l wx£ f U^U ^ju£J1 ^ju*J1
^IxaJLaJ £j^3 dL^^J tfJ } OlcXlstf.* r (3 ^T ^wX<*A. (3 £ ^-da*
- b J^AJ jLL«i do U^ L J^dMl g>J> J-*i (3 gj*d**
• |rr 9 J 5 * 2 i *0 jxb w*JLs:tJ <3 <JjjJl ^ jUJl
* (At i ^3) ^5 wXx^X. p J ii J J gx^o
- (AO I ^i) gfii\ ^ J,kJI
- (rtl Vn 3 ) SjL^lflJl c-jL^£
- (rrA ^ 3 ) <u ; jo oUt oajJi
r (3 (tvi ji rv* ^j) ix^is ; L-^v\ a>c *
I ^ X_j 1 ^j 1 g— aJj
- (V» I ax-w <3 «ajlJ|) ^ikiLkll ^^1 ^ixjUl
Aim ^bf^JO^gxt (rro^i) ^>U3xJI
^ v»j^U*JI ^ ^ »***■» - H do^*xJl ^Uaj
Vw 3*u«dj ^3—* wotf t^^xJI JUUI j ja»lx»Jl ^ J1
^y l— yi»l wXX*J JU^XaJ) OJ^X^JI lAWj^JI ^ Ju^4«)V\ vAJki uX^J I
O^jJl ^ } £;JvXl^v* <3 <3 ^b^i gxb
- <AXbiLl j>La*Jl (3 ^*1 ^i\JJ
ki\yL g_*) SJuiyi JU3LA1 ^ ^xJl jilSjJl
A
^ vJuJUJl ^ JubL i^i <xul JUL^. J^swJ (OUl^ft ^
• Jixxw ja ai? ^mXxM
BIBLIOGRAPHY
315
j\ jmJo *ajLJ^« j\e>\ If ygXJL^LI^yo £>^it5 wX)w^
(aX>UU «AA^k JaL
^ 3 xkc ^jyyt /iJ$- £ *4,A1
|Jj If ^1 ^<« ,J— *> ^LxsLI «|^ool) ‘aJJ ^J»*l
- ajhm va>-**j (u> LL^tVb
• d Mir u\i-w Mjf ^aai d U^» ^^4*1 o^ g<! U
J\ks\*) ^ ‘cUilvXA^* vX^ jl OUlyt fljil
(^a» lror «**) f £ |1 ^ jailiu
fU5 ^ w*£L»* y>l Iffllai ^ L-y C X*JL l b l a»
I ^
* ( o ) yr ^^jlf l >bf ^*XAa. ‘O^L£* i/kj>Ja* bail jl ‘^.
i/ClaCUe iAJ^xL-o * Lo) l j\ v^A*ulf bi)
* d ;9r9 ^b| ^hXAfib ^a)L»LL
*A*^aJ»* bail jl s^yfr***
'd' ,rr 3
■ ?
i/CXs\«« jvs^xla^o Lai 1 jl «ljjol ^ \ jX * *S ^JwX*
- s nrA E- ,u ‘>lt
*
Aj y »o ** A^JlLl ^1 ^Uxfifc* 11 cilx^ y bail ^1 <A^ *^ &» ^^1
#Jmwj v^Liuoi ClilxLxi ^jy j^i) ijy
jiy^jJU^ iLl j»Xa» A^Uai jCIaA^ ^^uiUli flxj ^a) >w y L<
^ fb-** *3^ s-y** J-*' cr**®* ^ in 1
- (M >**) ( I 0) jJa. ‘>bT ; ja*. ouiUi* Aisx-
^**v. ‘.A*^- L-ail _)! *£ uaif
. X«ljJLo jlif jJ^Jb> ‘,/Wjjl*** >A*»*lai ‘ OU.U :CU
jl (a^vJJo. g\Ua) ^ Aa-jla. CXm lfr w (J v3>i° *M»*
-£|lPr ‘JU-U— *I»V. ‘toil
316
MUSLIM CONDUCT OF STATE
$ Jy®' J»*> 2 '*>')**
,*\r OVjfi'A J-J; bbf ^‘tfvjulki Mxi* <Uyb* ‘liil
‘C-rtlw «0*X* ‘tall )\ Jyo\ 2\S^ C~wlju» J ^.xi
* t Hr* ‘>i»T
OLi j jiy * jb ‘L*ojI jl »iSia. i (_£$>»>
.Airir >uf viJiS jxk
‘.Jjla* 'LaJ I jl OliU3 ^,>1^1 0 J^» «£ ^x> 04 ,»
- e hrr
ibf yj*. JSxjL*Ul» /Xsv*) 0 U» y i)\$ eClU-LIjo
-Lajl jl (^«ai |P0*tAJU»i
- e l,r > *$ o;U- ‘U*> Jl C^JU-* ;r a3 ^ijjf
^bf ^ *x 'iJUmiL^u) i/(is»v» ‘bail jl ibf y b) •Z'j'*'*i
't' w * u>V
- £ hro f y g4 U>l ;l a »^kJ , 5 I J 3 -ol ,£ eflUl jo 0 y«
V.;UI| UUb
‘Our ui) ^>Ui <al J, »Li, Jl .lili.1 JUbU. JiisL I *JI;I
' t* •**>>)
*/jJi UUL
*ir*r J^i ‘jbx ^ ‘jyJi jj,«s
• (wa*}U«)l : T \J^I J*a»)
;y»y v^y ‘uuiUai ^ iA-^L* C**u U ««* _5
- A|rr- j^'ix-i ‘ 0 iU
BIBLIOGRAPHY
317
2 Works in European Languages
N.B. — Just as regards in Oriental languages, so, too, here
only a select list is given. I have come to know
a few works only recently, and hence I was not
able to utilise them, e.g., those by Goaaby,
Redslob, Schulthess, Struppe.
ANONYMOUS . ... Ueber die oberste Herschergewalt
nach dem muslimischen Staat-
srecht, in : Abhandlung d. I, Cl.
d. k. Byr. Akademie der Wiss-
enschaften, Vol. iv, Abh. 3.
‘AbDUR-RahIM ... Principles of Muhammadan Juris-
prudence, Calcutta, 1911, see
particularly, Ch. xii. (Also Urdu
and French translations).
AMARI, M. ... I Diplomi arabi del r. Archivio Horen-
tino, Florence, 1863; Appendix,
1867.
ARMANAZI, NEGIB ... Vlslam et le droit international,
Paris, 1929. (Also Arabic edition
with ameliorations).
ARNOLD, T. W. ... The Caliphate, Oxford, 1924.
BECKER, C. H. ... Studien zur Omajjadengeschichte,
in : Zeitschrift fur Assyriologie,
Vol. XV, 1900, pp. 1-36.
... Deutschland und der heilige Krieg,
in : Internationale Monatschrift,
1915, Sp. 631-62, 1033-42.
BELIN ... Fetwa del Nakbache relatif d, la con-
dition des dhimmis, in: Journal
Asiatique, 1861.
318
MUSLIM CONDUCT OF STATE
BERCHEM, VAN ... La propriety territoriale et Vimpdt
fonder chez les premiers Calif es,
Gen&ve, 1886.
Boeck. de ... De la Nationality dans les pays
musulmans, Delloz Periodique,
1908, pp. 121 et seq.
Bon, GUSTAVE LE ... La Civilisation des Arabes, Paris,
1884 (Also Urdu trs.).
Bordwell ... Law of War between Belligerents,
Chicago, 1908, see pp. 12-14.
CAETANI, L. ... Annali de VIslam (Up to the year
40 H. only), 8 vols. Milano, 1905
et seq.
Cardahi, Ch. ... La Conception et la pratique du
droit international prive dans
VIslam. Etude juridique et
historique. In : Recuil des cours
de l'Academie du droit interna-
tional de la Haye, 1937 ii, article
5, 36 pages.
CHAFIK-CHEHATA ... Essai d'une theorie giniral de
Vobligation en droit musulman, le
Caire, 1936,
CHAYGAN, M. ... Essai sur Vhistoire du droit public
musulman, Paris, 1934.
CHIRAGH ‘Ali ... A Critical Exposition of the Popular
Jehad, 1885.
DESVERGERS, N. ... Arabie , Paris, 1847.
Encyclopaedia Bri- s. v. Caliphate, etc.
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328
MUSLIM CONDUCT OF STATE
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It
Petrie
Budge
Brugsch
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• ••
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Oppenheim
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M
Bible
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BIBLIOGRAPHY
329
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330 MUSLIM CONDUCT OF STATE
(;') Of East Indies.
Arrian
... Ind. c. II.
Diodor
... II, 36, 40.
Strabo
... XV, 484, ed. Cassaub.
(k) Universal.
Walker
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INDEX
al-‘Abb3s, 134
al-'Abbas-ibn-MShSn, 110
Abbasids, 21, 64, 70. 76. 77, 91, 92,
116, 122, 131, 137, 215, 225,
app. A.
‘Abd-ibn-Julanda, 94fn.
(banu) ‘Abd-ibn-'Adiy, 289
‘Abd ‘Amr, 186
‘Abdul-Latif, Prof., 18
‘ Abdullah-ibn- Abi- U m3mah al-
Bahiliy, 124
'Abdull&h-ibn-S u h a i 1-i bn-' Amr,
268
‘AbdullSh-ibn-Ubaiy, 154
‘Abdul-Malik, 102
*Abdul-Mun‘im-al-Baghd3diy, 26
‘Abdul-Qais, the, 287
*Abdur-Rahm3n-ibn-‘Awf. 7, 186,
268. app. A.
* Abdur-Ratjm 3 n-i b n-R a b P a h al-
Bshiliy Dhun-NOr, 272fn.
'Abdur-Rahlm, 30
*Abdur-Razz3q, 124, 155
AbnS', the, 287
Abrahah, 55
Abraham, the Prophet, 35
Abu-Bakr, Caliph, 17. 44, 45, 122,
126, 156fn., 161, 167, 268, app.
A.
Abu-Dahm, 125 tris.
AbQ-DawOd, 124
Abn-Hanifah, 2, 8 tris, 25 tris, 82,
102*. 174fn.. 246, 264
AbG-Hanlfah’s Law Academy, 25
‘ Abu-Hanifah’s parents, 35
Abu-Hurairah, 124
AbG-Jahl, 141, 185
AbQ-Khiiash, 58fn.
Abu -Musa al-Ash‘ariy, 135
Abtf-Nu‘aim, 125
Aba-Rafi'. 219
Abtl-Sa'id al-Khudriy, 124 bis.
Abu-SafwSn, 185, 186
AbO-Sufyan, 118fn„ 187, 200, 219
Abu-Thawr, 242
AbB-'Ubaidah, 232
Abil-Ya'la al-FarrS', 216
Aba* Yusuf, 8, 75, 88, 100fn., 103.
104, 120, 136, 143 tris, 144, 150,
170, 207, 208, 223, 232
Abul-A'la MaudOdly, 30
Abul-Huqaiq, 219
Abul-Fida’, 136
Abus-Su'ud, 83
Abyssinia, 54, 55, 106 bis, 139, 177,
258 bis, 296
academy of law, AbG-Hanifah’s,
25
accretion, 88
acids, 218
acquisition of land, 8, 90
acquisition of property, 82
acts forbidden in war, 195
acts permitted in war, 215
'Ad, the 227, 228, ‘Adites
‘Sdah, 32
Adam, 39, 234
Aden, 53, 56
adherence to treaty, 270
‘Adil-Shah, 90fn„ 95
'Adites, the, 172, * Ad.
‘Adi, the, 53
administrative rules, 61
administratorship, 81
admirals, 32. app. A, 4b.
adultery, 196, fornication
advice, 79, 141
aeroplane, 80
332
MUSLIM CONDUCT OF STATE
Africa, 40
age, 103, 110
age for women volunteers, 244
Aghlabites, the, 77
Ahabish, the, 53
Ahmad-ibn-TulOn, 116
Ahmad-Rashid (Ahmed Rechid),
*29 bis, 30
Ailah, 130, 253 tris, 258
air, 80, 97
‘A’ishah, 173, 244, 245
Akilul-Murar, 53
Al Masruq, 53
Alexandria, 64
alien, 58, 108
‘Aliy, caliph, 44, 45, 79fn„ 122, # 126,
127, 142, 145, 156fn„ 166, 167,‘l68,
169fn., 171, 172 bis, 173, 187, 225.
226, 245, 268, 281, 292
‘Aliy’s decisions collected, 25
‘AlIy-ibn-Mas‘ud, 69fn., 70fn.
allegiance, 69, 84, 92, 229
alliance & allies, 169, 202, 259
alliance, ceremony of, 54
allied territory, 129
allies of enemy, 194
Alp Arsalan, 136
alphabet, 47
Amalekites, the, 47, 172
amanuenses, 16
Amases, Pharoah, 129
ambassador, 32, 46, 47, 49, 55, 118
ambassador, immunity to, 164
ambulance, 271
Ameer-‘Ali, 136
amendment of treaty, 263, 269
America, 40
America^Arab discovery of, 88
(banu) ‘Amir, the, 202
‘Amir-ibn-az-Zanb, 57
Amtrul-Mulminxri s title in Spain,
92
al-‘ Amiriy, 24fn.
amnesty, 197, 201
amphictyonic league, the, 48
‘Amr-ibn-Marthad, 53
‘AmudaryS, 89
analogical deduction, 4
analogy, 23
A‘naq*liyamut, 134
anarchist, 142
anarchy, 166
Anas-ibn-Abi-Marthad al-Ghnawly,
134
(banu) al-Anbar, the, 260
animals 196
annexation, 87, 90
AnsSr, the, 69, 234
Antioch, 64
apostacy, 79, 115, 156, 161, 162, 181,
197, 287
appurtenant land, 84
‘Aqabah, 130, 187fn„ 253
Arabia, 32. 35, 36, 44, 49, 50, 52. 53,
55, 56, 57 bis, 102, 158, 232, 235,
278, 287
Arabs, 49, 91, 110, 111, 131, 190
arbitration & arbitrator, 15, 57, 79,
127, 141, 143, 209
arbitrator, qualities of, 143
Aristotle, 25, 48
Armanazi, Negib, 29
Armenia, 35
armed forces. 269
armistice, 59, 254
armour, 231, wargear, warkit
arms, laying of, 201, 226
army, non-Muslim King’s Muslim,
113
army court and judge. 271, 272fn.
army, filing of, 123
arrow, 198, poison arrow
art, 51
artisans, 210
(banu) Asad, the. 53
Ashja\ the, 259fn.
Aslam, the, 53, 57
Aslam Jairajpuri, 18
al-Ash’ariy, 135
assimilation of foreigners, 58fn.
assassination, 142, 218
associators, 72
INDEX
333
astrologer, 33
astronomy, 66
Aswad the shepherd, 187
Aswan, 291
asylum, 290, 296
atheist, 72
‘Atiyah-ibn-Qais al-KilSbly, 120
auction. 238
Aundh State, 112fn.
aunt 203
aunt of the Prophet, 245
authority of state, origin of, 73
autonomy, judicial, 99
award of arbitrarion, 15, 30
Awrangzeb, 21, 25
Aws, the, 69fn.
Awtas, 134
al-Awza‘Iy, 8
Ayala, 64, 65
Ayubids, the, 136
A 4 zamgarh t 30
azdn % 109, service call
Badr, 57, 123, 186, 206, 212. 220,
223, 224, 237 bis, 239, 246fn.,
257
Badruddln, see Ibn-Juma‘ah
Baghdad, 64. 77, 91, 92, 94, 109,
137 bis, 138
Bahmani Muhammad King of Bengal,
93fn.
Bahmanites. the, 93
Bahrain, 51, 53, 94, 102, 257, 265, 287
al-Baihaqiy, 125
Bayasirah, the, 109, Baisar
Baitul-Mal , 40, 101
Bakr, the. 59fn.
(banu) Bakr, the. 268
Bakrites, the 279, 280
Balhara king, 109, 110, 111
bandits, 214, brigands, highwaymen,
pirates
banishment, 177, 178
banners, 235
al-Bara’-ibn-Malik, 241
barbarians, 48, 63
base of operation, 294fn.
Basrah, 90fn„ 109, Bussorah
Basus, war of, 279
baton, 123, 124
beasts, 172, 231
Becker, C. H., 27
bedding, 251fn
bedouins, 123, 127
beggar, 101
behaviour, 7, 9
behaviour of Muslims in foreign
land, 114
beheading, 177, 223, 274, decapita-
tion, killing
beheading prisoners, 206
Belgium, 62
belligerent rights, 12
belligerent state, 118, 119
belligerents, 62
Bello, Pierre, 64
benevolent neutrality, 296
Bengal, 93fn.
Benjamin, 104fn.
Bentwich, N., 63
Berar, 95, 236fn.
Berber, the, 102
Berberland, 34
Bergstasser, Prof., 18
bequests, 80
Berne, 31fn.
Bible, 48, 230
al-BIhariy, Muhibbullah, 13
Black Sea, 84
Bilal, 7, app. A
blind, the, 100, 195, 201
blind-folding, 248
blockade, pacific, 148
blood money, 191, 272, 274
boarding house, 116
boats, 86, 87, 253
body guard, 114
Bombay, 34, 109
books, 82, manuscript
booty, 59, 72, 98, 106, 124, 163, 170,
174, 200, 209, 212, 295, satab
334
MUSLIM CONDUCT OF STATE
booty, distribution of, 221. 237,
239. 240,
booty, law of, 237
booty officer, 272fn.
booty, pagan law of, 242
booty, kinds of, 59fn., 238
border district, confinement to.
178
Bordwell, 28
borrowing, 104, 125, loans
boundaries. 82, 88, 89, 90, 189,
frontier
breach of treaty, 182
breach of treaty with non-Chris-
tians ordained by Pope, 63fn.
bread, 207
bride money, 196, 269, nuptial gift,
dowry
brigands, 177, bandits
Britain, 236fn.
Brockelmann, 24fn.
brotherhood, 40, 41, 43
Buddhists, the, 35
Buddhist Law, 50
budget, 266
buffer state, 77
buildings, 82
Bukhara, 35
al-Bukhariy, 118, 204, 223, 245 bis.
281
Bulghar, 93
bull, Papal. 63
Burhanuddin al-Marghinanly, 218
burial, 172, 246, 254
burial of beheaded criminals, 112
burning, 217fn,
burning alive, 197
bursaries, 116
Bussorah, 137, Basrah
Buzurg-ibn-Shahriyar, 110
Byzatltines, their empire & Govern-
ment, 34, 49, 55, 65, 78, 90, 92,
107, 138, 211, 255, 265, 278
Caesars, 61, 62
Caetani, 267fn.
Cairo, 86, 101, 116
caliph, 15, 126
caliph, non-Quraishite, 81fn.
caliph, orthodox, 20. orthodox caliphs
caliph prayed in China & India,
109, 113
caliphate, see Khilafat
call to prayer, 109, az3n
calligraphy, 211
camp, 124, 125, 127ff„ 172, 269
camp followers, 173. 194
camp officer, 272fn.
camp secretary, 272fn,
canal, 85, 86, 101
Cananites, the, 63
cancellation of the Qur’an, 16
canon law Muslim, 31
cannibalism, 46
cannon, earliest use of, 217
capacity reduced, legal, 106
capitation tax, 91, 100, 101, 102,
jizyah, protection tax
capitulation (privileges), 107, 129,
cf.99
capitulation (surrender) 142, 193,
208, 230
captive, 196, 215, prisoners
caravans. 54, 134
cartel, 212
Carthage, 47
cases & precedents, 286
cases, collection of, 25
Caspian Sea, 113
castles, 218, fort
caste, low, 112
catapults, 219, manjanlq
cavalry, 239
ceremonies of alliance, 54
ChaigSn, 30
Chencha, king, 109
change in river’s course, 88, 89
charity, 100, 101
Chaul city, 109
chief of Muslims in foreign coun-
tries, 109
INDEX
335
children, 72, 114, 184, 194, 203, 209, 250 communal chief, 99fn., 131fn., chief
children, when to kill, 215
China & Chinese, 35, 53, 87, 112,
113, 137fn.
chivalry, order of, 58
Chosroes, 94fn.
Christian dress, 218
Christian Service in Mosque, 140
Christians, 35, 77, 102, 260
Christians worse than barbarians, 63
Christianising slaves compelled by
French, 211fn.
Christianity, 62, 63, 131
Christianity no uniting force, 64
church, app. A, 2a.
church, donation by Muslims to,
131
church augments horrors of war, 64
city, 233
city state, 1, 39, 48, 50, 52, 60, 61,
202, 258
city state, confederal, 190
civil law, 250
civil war, 165,7, 281, 291
civilised nations, 63
clericalism, 63
closing roads, 222
cloths, 207, 251, 252
coats of arm, 231
codes, early Muslim, 24
codification of Muslim law, 33fn.
coercion, 77, 162
coins, 93
collective might of community, 81,
82
Collinet, 60fn.
colonisation, 88
colour, 40, 41, 42
combatant, 184, 201
commander, privileges of, 59
commerce, 49, 54, 85, 129, 185, 189,
267
commerce patronised by Prophet, 135
commerce with enemy, 252
commercial agents, 134
commonwealth, 39
community, 81 .
Compagnie des Indes, 211fn.
companions of the Prophet, 16, 19,
20, 111, 206, 208
compensation of gain, 89
compulsion by French to Chris-
tianise slaves, 211fn.
conciliation, 141
condominium, 70fn„ 91, 236
conduct, 8, 10
conduct in war, 189
confederation, 190
conferences, 26, Madlnah Confer-
ences
confiscation of land, 232
conflict of laws, 5
Confucius, 25
conquest, 89, 90, 229
conscience, freedom of, 106, 157
conscription, 99
consensus of opinion, 15. 21ff„ 161,
206
consent of states, 2
Constantine V., 205
Constantinople, 91, 138
consternater, 218
constitution, 202
constitution of city state of Madi-
nah, 184
consul, 135
contraband, 192, 251
contract, 98, covenant, treaty, pact
contractors, 194, 197
convents, 100
conventions, 32. 36
conversion, 106, 112, 113, 209, pro-
selytism
conversion of slaves, 187, 211fn.
conversion punished. 107
converts, 269
cooks, 244
Cordova, 64
corpse, 246
corregnum, 236fn.
336
MUSLIM CONDUCT OF STATE
court, enemy's right to sue
Muslim, 250
court, rebel’s, 169
court, army, 271
covenant, execution of, 101
crimes, 119, 121, 179
Crete, 148
criminal, 250
criminals. 197
crippled, 100
cross, 235
crown, 279
crown land, 236
crucifixion, 176, 177
cruelty, 195
crusades, 64, bis, 134, 217 *
Ctesiphon, 55
cultivated land, 231
culture, 64
custom & usage, 1, 2, 5, 15, 32, 34,
36, 61, 108
customs duty abolished, internal, 135
customs-free goods, 135
Cyprus, 92, 292, 293
Daba, 53, 56
ad-Dabusiy, 76
dacoits, 177, bandits
damages, 202, 272
Damascus, 29, 44, 136
(banti) Damrah, the, 259fn., 288
tris.
ad-Darimiv, 124
date fruits, 259
date leaves, 16
daughters, 203
dead, treatment of, 244, 246, 254
dead body of enemy, 246
dearness due to excess of supply,
136
deaths, 103
death penalty, 112
debts, 121, 188, 228, 250, loan,
borrowing
debts of enemy, 187, 274a
in decapitation, 195, beheading
Deccan, 95
Decius, 278
declaration of war, 59, 181, 184
declaration of war, effects of, 184
deduction, 23
defamation, 120
defeat’s effect on debt, 274a
defence, methods of, 217
Delhi, 30
delict, 111, 121
delirious, 195
deliverance, war of, 166, 167
Delphi, 48
demilitarisation, 254
demobilise, 255
denunciation of treaty, 260, 264,
notice
dependant, nominally, 92
deposit, 188
deposition of ruler, 81, 174
depredation, 178
derelict land, 82fn.
desert, 83
desirable acts, 106
despotism, 81
destructive weapons, 171
detention of envoys, 140, 147, 248,
269
Deutronomy, 72fn., 209fn., 234fn.
devastation. 196, 198
dhadah , the, 58, chivalry
dhimmis , 11, non-Muslim subjects
Dhul-Kul5\ 287 bis
Dhul-Majaz, 56
diarchy, 69
diplomacy, 134
discord, 78, 177, 216
discount on capitalising long-term
debt, 274a
discovery of islands. 87, America
discretionary punishment, 178
ad-Dish, the, 53
disliked acts, 106, improper
distance, 219
distribution of booty, 237, booty
INDEX
337
distribution of booty cancelled, 213
ditch warfare, 217
Divine right, 81
diviner, 57
dogs, 272
Dome of Rock, 94fn.
domicil, 58, 112
Dongola city, 108
douane, 135, customs, import
dowry, 90, bride money, nuptial gift
dress, 108, 109 •
dual subjection, 92
Duj'umites, the, 278, 279
DOmatul-Jandal, 7, 52, 56 bis, 57,
154, 236
dumping, 136
Dupleix, 2Ilfn.
duties of Muslims. 78
duties, kinds of, 43
earth, ownership of, 73, 74
Eastern Roman Empire, 49, By-
zantine
economic federation, 56
economic pressure, 148
effects of peace r treaty, 261
Egypt, 35, 47, 49, 51, 87, 104fn., 129,
236fn., 267, 291 bis, 294fn.
elasticity, 4
election, 69, 70
elements of peace treaty, 261
elephants, 110
emancipation, 209, 272, manumission
emancipation a government duty,
204
embassies, 97, 228, envoy, ambassa-
dor
empire, 39
envoy, 55, 118fn., 134, 184, 247, 248,
ambassador, embassies
end of war, 257
enemy, relief to, 184, 266
enemy message-bearer, 247, 248
enemy person, 59, 160, 192
enemy, rights of, 62, 65
enfeoffment, 228, 232, jagir, fief
England, 294fn.
enslavement, 118, 119, 209, 295,
slave
enslavement prohibited, 235
enslavement of thief, 104fn.
equipment of army, 236
equality, 23, 133
equality, Islamic, 72, 73 N
escape from captivity, 204
escort, 52, 53
ethical basis, 66
ethical law, 37
ethnic unity of man, 39
Euphrates, 46, 85, 86, 88fn,
Europe, 40, 48, 60, 136, 137
Europe, why first time united, 64
evadiation, 188, 269fn.
Eve, 39
evil, 78
excess, 196
exchange of territory, 90
exchange of prisoners. 205 r 212, 238,
248
executor of Prophet’s will, 45
exemption from jizyah, 101
expedition, 124
export, 251
export of weapon. 252, contraband
expulsion, 178, 231, 274a
expulsion of undesirables from con-
quered territory, 214
extermination of highwaymen, 179
extradition, 47, 58, 107, 108, 117, 131,
178, 269
extra-territoriality & exterritoria-
lity, 106, ,129, 269
Fadak, 231, 238 bis, 258
Fagnan. 27
fairs, 53, 57, 58
faithful, 40, 43
famine, 136, 266
famine relief, 216
Farama, 86
al-Farra’, Abu-Ya‘13, 216
338
MUSLIM CONDUCT OF STATE
Farrukhan, 290
fatwd as against taqwd , 246
feasts, 235
federation, economic, 56
female forces, 245,
Fer6z Shah, 93
festival, 113
fetials, 49
fief, 86, enfeoffment, jaglr
fifth of booty, 237
fines. Ill, 112, 221
fines on neglect of Friday service
in Hindu States, 111, 112
Finlay, 205, 212fn.
fiqK 2, 3. 4, 65
fire, 197, 198, 218
fire of pact, 54, ceremonies
tire-worshipper, 103
flag of truce, 226
flame thrower, 217
flood, 254
flooding of enemy, 217fn., 218
fodder. 220, 221
food, 220, 249, 251, 252
foot, amputation of, 177
forbidden acts in war, 105, 195
forgery, 119
forms, of government, 69, 70
formation of army, 123, 217
ormcation, 120, 196, adultery
forts. 217,218, 231,232
fortress, 245
fourth of booty, 242
foreign Muslims, 116
foreigners, 5, 11, 14, 121
foreigners, protected, 120, dhimmis
fraction of taxable things, 231
France. 211fn.
free person, 178
free trade, 136
freedom of Man, origin of, 71
French compelled their slaves to
Christianise, 211fn.
French East India Co., 211
Friday, 111, 112fn.
Friday sermon, 77, 92
Friday service, 109
Fries, 226fn.
frontier, 82, boundary
fundamentals of law, 4
Gabriel, 16. 123
gain always with sufferance, 89
gases, poison, 218
genologism, 50
generals, 32, commander
Gentiles, Prof., 64, 65
Gentiles, the. 199
Germany, 294
Ghanah, 111
Ghassan & Ghassanids, the, 127,
257, 278 bis, 279 passim
Ghaznah, 69fn.
Ghifar, banu GhifSr, the 259fn., 288
Ghatafan, the. 53, 57. 259, 286, 287
Ghulaman (slave) dynasty, 93fn,
gift, 87, 90, 138
gift instead of booty, 240^
gift, official, 139
goats, 123, 125, 187, sheep
God the law-giver, 4
golden mean, the, 67
Goldzieher, 18
good and evil, 3
good offices, 79, 141
Gospel, 62, 63, 130
grains, 186, food
gratuitous release of prisoners, 212
graves of fighting soldiers, 244
graveyard, 112
grazing camel, 125
Greece & Greeks, 35, 47, 48, 60 bis,
61, 129, 214
Greeks enslaving the world, 71
Grotius, 63, 65
guard of women for stores, 244
guardian, 267
gubernatorium, 37
gi st house, 139
gUi ’s and sources, 3, 4
Gujrat, 109, Lar
INDEX
339
Habib-ibn-Maslamah, 123
habit, 36
hadlth, 4, 18
Hadramawt,53, 56
hafiz of Qur’an, 17
Hafsah, 18J
Hague, the, 29 bis
al-Haiya. the, 53
hajj. 35, 41, 42. 43, 56, 267, pilgri-
mage
al-Hajjaj-ibn-YOsuf, 108
al-Hakam-ibn-Hisham, 126
al-Halably, Ibrahim, 84
Hamldullah, M., 20
1 amzah, 141
al-Haskafly, 84
al-Hamawiy, 83
al-Hamilly, 83
Hanafites, the, 162, 181, 240
hand, amputation of, 177
hand, holding up, 226
Haneberg, 27
(banu) Hanifah, 279
harim-land, 84, 85
h Srith-ibn- 4 Abbad, 280 bis
Harith-ibn-Suwaid, 274
Harun ar-Rashld, caliph, 77, 91,
150
harvest, 196
al-Hasa\ 56
al-Hasan, 90
Hatay, 47
Hatib-ibn-Abi-Balta‘ah, 222, 223
Hatscheck, 27
Hawazin, the, 53, 209, 213
Hawdhah-ibn- 4 AlIy, 94fn.
head of state, 122
head severing, 196
Hebrew, 47, 63
Hedjaz, 52, Hijaz
Heffening, 27, 267fn.
Helpers, the 234, Ansfcr
Heraclius, 94fn.
hereafter, 13, 66
herd of goats 118
hereditary succession, 69
hermaphrodite, 162
hermit, 195
hides, 187
Hierapolis, 135
highwaymen, 11, 177, bandit
Hijaz, 261, Hedjaz,
HilSl al-Hajariy, 272fn.
hilful-futful, 58
Hims, 188
Hind, 110
Hindus, the, 108, 109, immigration-
laws
Hindu qazi of Muslims. 112fn.
HIrah, 53fn.
history, 66
Hitaler, 47
Hittites. the, 47
hiyadah , 277, neutrality
Holtzendorff, 28
holy circle, 289
homage, 69
homage to caliph, 93
homage of Shi'ahs to Sunni caliph.
94
honour, 125, 204
horse, 242, 251
horse, postliminium of, 243fn.
horseman’s share of booty, 238,
cavalry
horsemanship of women, 245
hospitals, 271
Hospitalers, the, 64
hospitality, 58
hostages, 59, 174, 196, 262, 264
hostile relations, 147
house, 85
House of God, 265, Ka 4 bah
household goods, 251fn.
Huart, C. f 27
Hubashah, 57
Hudaibiyah, 5. 132, 140, 144, 148,
153fn., 191, 222, 259, 261, 265,
266, 268, 289, 290 bis.
human society, 39
humanitarian grounds, 185
Hunain, 123, 182, 239
340
MUSLIM CONDUCT OF STATE
Hunarmah & Hunarman, the, 109,
110 tris, 135
Husail-ibn-Jabir, 274
husband. 103. 269
Hutai'ah, 81fn.
Hyderabad, 236fn.
hypocrisy & hyDOCrites, 156, 274,
283
Ibn-*Abd-Rabbihi, 55
Ibn-'Abidin, 83
Ibn-‘Asakir, 123
Ibn-Fadlullah, 133
Ibn-Habib, 7, 274
Ibn-Hanbal, 35, 124
Ibn-Hawqal, 111
Ibn-Hibban, 123, 125
Ibn-Hisham, 7, 124, 141, 150, 274
Ibn-Humaid, 124
Ibn-Ishaq, 123
Ibn-Jahsh, 237
Ibn-Jubair, 115
Ibn-Jum5‘ah, Badruddin, 103, 241
Ibn-KhaldCn, 70
Ibn-Qani\ 124
Ibn-Rushd, 25. 206
Ibn-Sa‘d, 8, 139, 177
Ibn-Taimlyah, 178, 179
Ibn-TolGn, 116
Ibn-‘Umar, 243fn.
Ibrahim, see Halabiy
Ibrahim Haqqi, 28
‘id (festival), 92
‘Id service. 111
idolators, 123
idolators, Arab, 181
Idrisites, the, 77
Ignorance, days of, 36
‘Ijl, the, 279
ijmd\ 21, consensus
Ikhwdnus-Safa\ the, 25
7/5f-pacts, 54
indigent (miskin), meaning of, 100,
101
influence, importance of, 215
inheritance, 5, 90, 121
immigration-laws of Hindus, 108
immunity to envoy, 139
immunity to ruler, 122
implications of a passport, 250
import customs, 122, customs
imports, 253
imposter, 140
improper acts, 105, 116
incarnation, 73
independence, 68
independence defined, 70
independence only relative, 71
India. 21, 34, 53, 70 bis, 93 bis. 95 bis.
102, 108, 111
India, Muslim, 90
infantry, 238, 239
injury must be removed, 89
insane & insanity, 162, 174, 195,
201
inscription, 55
instructions of Prophet, 32
instructions, official, 15, 32 app, A
instructions to commanders & admi-
rals, 72fn., 199, app. A
insurrection, 166, 167
interdependence, 134
inter-Muslim clash, 273
International Law defined, 1, 9
international law 4 s history, 46
international law’s place, 37
international law’s object, 13
international law’s sanction, 14
international law’s sources, 15ff.
international law’s subject, 11
internationalistion, 39
interpretation, 263, 269
interpreter 247, 272fn.
intervention, 77, 78, 79
intoxication, 120, 162
investiture, 131fn.
Iran, 49, 54 bis, 60, 172, 265, 294fn.
Iraq. 108, 113, 232, 266, 267, 280,
294fn.
Irene empress, 91
Iroquois, the, 46
INDEX
341
‘IsSmi, 70fn.
isldl n 289, 290
Islam, meaning of, 72
islands, 88
Ismaelites, the, 281
Istanbul, 28
Italy, 64
i'tizal, 277
Jabalah-ibn-al-Aiham, 127
Jacobites, the, 131
(banG) Jadhlmah, the, 272
Ja‘far, at-Taiyflr, 296 bis
Jagir, 86, fief, enfeoffment
Jaifar-ibn-al-Julandi, 94fn.
al-Ja‘irrSnah, 125
Jamal, battle of, 245
Japan, 63
Jir, 58fn.
al-j5rud, 287
Jerusalem, 63, 94fn.
Jesus Christ, 35, 48, 62
Jews, 34, 35, 47. 48. 101. 102, 129,
130, 141, 190, 191, 199, 202, 203,
209, 214, 231, 245, 259, 260, 265,
283. 287, 289
Jewish imperialism, 71
Jewish law, 33, 130
jihad , 9
JlljilSn, 290
jizyah, 91, 158, 181, 234, capitation
tax, protection tax
(St.) John, 62
(St.) John, order of, 64
John son of Rubin, 253
Joint-rule, 69
JonpGr, 93fn,
Joseph the Patriarch (YGsuf), 104fn.
judge. 111
judge and party in one, 126
judgement, day of, 105
judicial decisions. 23
al-Jualandi-ibn-al-Mustakbix, 53
Jurhumites, the, 280, 281
Jurisconsults, 3, 22, 25, 78, 105
jurisdiction, 76, 96, 97, 104, 105, 120,
121, 122, 127, 131, 169, 201, 205,
227, 243, 269, 295
jurisdiction of camps, 127ff.
jurists, 4
(banG) al-Jusham, the, 52
justice, 52
Justinian, 49
Juynboll, 27
Ka‘b-ibn-al- Ashraf, 219
Ka'bah, 42, 55, 66, 185, 200, house of
God
al-Kalbiy, 56
Karal^vski, 131fn.
al-Kasaniy, 144, 150, 215, 252
al-KattSniy, 19
Kautilya, 25
Khaibar, 56, 130. 154, 182, 187, 202,
220, 231 bis, 238 bis, 239 bis, 245,
258 bis, 265 Dassim. 272fn., 286, 287
Khalid-ibn-al-Walid. 231, 245, 262
Khalij Amir al-Mu‘minIn, 102fn.
Khalil, 198
Khandaq, battle of, 246, 257, 271,
274
KhSnfu, 112, 113
Kharijites, the, 156, 166, 277, 278
Kharijites and Khilafat, 44
al-Khatib al-Baghdadly, 20, 25fn
Khazar, the, 111, 113, 114 bis
Khazraj, the, 69fn.
Khalifah, 28, 41, 43, 74, caliph
Khilji dynasty, 93fn.
Khirash, 58fn.
Khirrit, 292
al-Khudriy, AbG-Sa*id, 124 bis
Khurasan, 290
Khuza‘ah, the. 268, 280, 281
Khwarizm, 113
al-Kilabiy, ‘Atiyah-ibn-Qais, 120
Killing, 215, beheading, decapitation
al-Kinaniy, 'Sir&juddtn ‘Umar-ibn-
‘Aliy, 83
Kindah, 53
342
MUSLIM CONDUCT OF STAlE
king can do no wrong, 122
kingdom of God, 62, 72
kingdom of God on earth, 180
knight, 280
knowledge, 51
Krenkow, 54
KUghan, 111
Kulaib, 280
lake, 82, 83
Lan, 111
lands, kinds of, 235ff.
land, neglected & uncultivated, 231
land reclamation, 87
land, unowned, 82fn., terlitory
derelict.
language, 41, 42, 50
lapidation of adulterer, 196
Lar, 109, Gujrat
Larshia Turks, 113
law, 2
Law Academy of Abu-Hanifah, 25
laws of the Muslims, 34
laws, division of Muslim 36,1
lawful war according*to Muslims,
72fn,
League of Nations, 294fn.
legal capacity, 106
legal science, 22
legal and moral, distinction between
104
legates, 136
legislation, internal, 15, 32
lending, 104, loan, borrowing
liberation of prisoner compulsory,
210
Lingayat, the, 102
literature on international law, 23,
app. B„ bibliography,
litigation, 121
loan, 105, lending
Lodhi dynasty, 93fn.
lowest of Muslims, power of, 201
lunatics, 100, delirious
Luther, Martin, was an^ Arabist, 64
lynching, 107
Ma‘ an. 107
al-Ma'bariy, Zainuddin, 111
Macdonell, J., 1
Madinah, 34, 44, 69, 79, 106 bis, 118
bis, 129, 133, 139, 142, 154 tris,
164, 184, 185, 186, 187, 190, 191,
202 bis, 203, 230, 232, 234, 237, 259
passim, 270, 283, 287, 288 bis,
289.
Madinah Conference, 26, Conferences
Magharibah, the, 116
Magians, the, 35, Majus
Maharah, 53, 56 bis
ai-Mahdiy, caliph, 91
MahmUd of Ghaznah, 69fn„ 93fn.
Mahmud-ibn-Maslamah, 268
Mahmud Shah, 93
Majannah, 57
Majdiy-ibn-‘Amr, 141
majority, age of, 103
Majus, 102fn., Magians
Malabar, 34, 108, 111 tris
Malatlyah, 90,211
Malay Peninsula, 34
Malik Shah, 136
Malik, 25, 35
Malikites, the, 241
malikut-tujj&r , 135
Maiwah, 93fn.
ManSzir Afcsan, Prof., 19
Manbij, 135
Mangalore, 90fn,
manjaniq, 217fn., catapult
Ma'mun, Caliph, 278
Mansur, 91, 126, 174fn., 264
manumission, 209, emancipation,
slave
manuscripts, 116, books
Ma‘qil-ibn-Qais, 172
Maqna, 130
al-Maqriziy, 205
al-Marghinaniy, BurhSnuddin, 218,
274
Ma’rib dam,:55, 280
marine wars, 217, sea, admiral
INDEX
343
marriage, 103
marriage of Prophet with prisoner
girls, 209
al-MarzUqly, 56
Masruq, the, 53
massacres, 47, 196
master of ceremonials, Prophet's,
137
Mas‘Ud of Ghaznah, 70fn,
al-Mas‘Odiy, 109, 112, 113, 249
Mathew, 62
Maudnd of Ghaznah, 69, 70fn,
mawld , 267, Mawall
mawla, great significance of, 58fn,
al-MSwardiy, 126. 151. 163, 168 bis,
182
mawall' 3 3), mawla
meat, 85
Mecca 8c Meccans, 16, 22, 32, 34.
51fn. 55, 69, 77fn., 107, 117 bis, 127,
132, 134, 139, 140 bis, 141, 182. 185
passim. 186, 187,190, 191, 197 bis,
200,216, 222 bis, 237, 252.255. 258
bis, 265 passim, 266, 267, 268, 269
passim 280, 281, passim, 286, 289 bis.
Mecca, foreign department of, 55
mediation, 141
medical men, 271
Mediterranean, 47, 86
memorising the Qur'an, 16, hafiz
merchant, 109. 112, 197
Merv, 136
Mesopotamia, 35, 118
message-bearer of enemy, 247, 248,
envoy, embassies, ambassador
Messenger of God, 3, 7. 35, Prophet
Middle Ages, 60 bis
migration, 98
migration of the Prophet, 187, 190
Mikraz-ibn-Hafs, 268
military service. 101
military service, compulsory, 99
Mina, 56
non-Muslim king a
Muslim, 114. j
mines, marine, 217
minerals, 80
minors. 122, 162, 194 t 195, 201. 223
minorities, treatment of, 76, 107
mission of Islam, 156ff.
mistake, 219/273
mixed court, 114
monarchy, 69
money, 82, 104, 211
Mongols, the, 137
monitors, 103
monks, 100, 195
monopoly, 85
Montesquieu, 46
moral law, 37
moral and legal, distinction between,
104
mortgage, 98, 121
Moses, 35, 47, 231
mosque, 32, 77, 107, 109. 110, 113.
114, 235
Mosul, 136
mother, 203, 207
Mother of the Faithful, 173
Mu‘awiyah,]caliph, 79fn., 90, 127, 142,
167 bis, 217, 226, 255. 264, 281
Mu’awiyah-ibn-Mughlrah. 202
Mudad, 281 passim
Mudarites, fhe. 52
Mughal Empire, 70
al-Mughtrah-ibn-Shu‘bah, 106
Muhalhil, 53fn.
Muhammad, the Prophet, 16, 41,
42, 72, 100, 268, Prophet
Muhammad II., 131
Muhammad-ibn- Habib, see Ibn-
Habib
Muhammad son of Maudud, 69fn.,
70fn.
Muhammad-ibn-‘Umar al-Aslamly,
124, al-Waqidiy
(banu) Muharib, the, 53
Muhibbullah al-Bihariy, 2
Majadhdhar-ibn-Dhiyad, 274
al-Mundhir-ibn-Sawa. 94fn.
al-Mundhir*ibn-‘Amr as-S&*idty
134
344
MUSLIM CONDUCT OF SI ATE
munition of war, 211
al-Mushaqqar, 53, 56
Munster, Lord, 226 fn.
Muqauqis, daughter of, 208fn.
al-Muqtadir Billah, 138
murder, 104, 120, 177, 280, killing
MHs&-ibn-IshSq as-SandalGniy, 109
MQsk-ibn-'Uqbah, 134fn.
Musailimah the impostor, 140, 164
Muslim the traditionist, 281
Muslim and non-Muslim alike in
worldly sufferings, 242
Muslim as foreign citizen, 75
Muslim detachments, clash between,
219
Muslim international law defined, 1
Muslim laws, 34
Muslim slave a contraband, 253
Muslim state, 76
Muslim states divided, 115
Muslim and enemy rights of bellige-
rency at par, 206
Mustato Pasha, 148
Muslims* fraternity, 116
(banu) al-Mu§taliq, the, 53, 182, 209,
239
mustamin , 192, resident alien
Mu'tah, 148
Mu‘tasim, caliph, 91, 225
Mutawakkil, caliph, 225
Mu'tazilah, the, 277, 278
mutilation, 172, 196
mutiny, 166, 167, rebellion
al-Mu?affar, al-Malik, 136
Nabatean caravans, 118
(banu) an-Nadir, the, 203, 230 bis,
274a, 283, 286
(banU) Najiyah, the, 292
Najran, 130, 140, 258
Nakhlah, 266fn.
Nallino, Prof., 277
Naqshbandiyah, order of, 44
an-Nasa'iy, 124
an-N&?ir 'Abdurrahman, 92
nation, 42
nationality, 5, 39, 52, 99
nationality, Muslim, 75
naturalisation, 58, 98
naturalisational methods, 103
naturalisation of the conquered.
214
navel of the earth, 43
Nawab ‘Aliy, Prof., 18
Nazi, the, 294
necessity, 31
negotiation, 141
negroes, 72, 211fn.
Negus, 55, 94fn., 107, 296
Nejd, 134
Nestorians, 131
neutralisation, 254
neutralised territory, 129
neutrality & neutrals, 59, 75, 115,
119, 144, 190, 191, 194, 219, 236,
271, 276 fn.. 296
news stopped, 222
Nichephorus, 92
Nicholas IV., pope, 63fn. (breach
of promise enjoined by him)
night attack, 219
nihilist, 292
Nile delta, 129
Nishapur, 136
Ni ? 5m Shah, 90fn., 95
nizSmul-hadratain, post of, 137
no-man’s land, 83, 96, 97, 129, 202
Ndldeke-Schwally, 18
noise as a consternater, 218
nomads, 50, 52
nominal dependence, 76, 92
nomination to caliphate. 70
non-combatant, 194, 195, 215
non-combatants, when to kill, 219
non-contraband goods, 251
non-hostile intercourse with enemy.
247
non-Muslim subject at home, 99
non-Muslims, war with, 180
N orth Africa, 34, 35
North Africa, western, 116
INDEX
345
notice to determinate treaty, 260
Nu*aim-ibn-Muqarrin, 291
Nubia, 107, 132, 291
nuptial gift, 269, bride money,
dowry
nurses, 244, 245, 271
NGruddin Mahmud, 136
Nys. E.. 27, 28, 62, 63
oath, 69
obedience, 72
obedience when prohibited, 175
occupation, 87, 90, 229
Oceania, 88
old men, 195
one-sided extradition, 269
open sea, 83, salt sea, 97
opinion, 15, 23
Oppenheim, Prof., 60
oppression, 100
oration of the Prophet, 188 fn.
orders of Christian monks, 64
origin of law, 3, 4
ornaments, 85
Orthodox Caliphs, 66, 70, 102, 130,
286, 290, caliphs
Osmania University, 19, 211
ownership, 80, 81
ownership, origin of, 82
Oxus, river, 89
pacts of i/af, 54
pacts with non-Christians null, 63
Palestine, 232
palm groves, 231
Papacy, 63
paper, 16
paradise, 149, 180
pardon, 179
parents, 197
parley, 59, 247
parole, 204, 21 2
Parsis, the, 102 fn.
part-sovereign, 11
part- sovereign state, 68
party and judge in one, 126
passage, 296
possport, 52, 114, 117. 249
passport, how to annul, 119
pastures. 231
path of God, 151, app. A.
patriarch, 64
Pauly, Leo, 53fn.
paying for purchased goods, 220
al-Pazdawly, 23
peace, 255, 259, 273
peace, separate, 259
peasants, 100, 197, 210
penal code, 120, 272
Pentafteuch, 47
perfidy, 196, 263
permission to enemy for travel and
transit, 84, 103, 249, passport
permitted acts in war. 215
perpetual alliance, 259
persecution, 117, 269
Persia & Persians, 34, 35, 49, 79fn.,
87, 279
Persians domiciled in Yaman, 287,
Abna
Persians, laws of, 35
person, enemy, 192
personal character of Muslim law,
104
personal law, 99, 104fn., 230
Pharaoh, 129
Phillipson, 48, 61
philology, 66
Phoenicia & Phoenicians. 47, 48, 51,
60, 194
pigs, 218
pilgrimage, 22, 35, hajj
Pilgrimage, Last, 73fn., 124, 188fn.
Pillar of Embassies, 137
pillars of state, 70
pirates, 11, 177
Plato, 48
plague, app. A. 2a.
pledge, 105, 121, 264, 291
pledge, violation of, 105
346
MUSLIM CONDUCT OF STATE
pledge enjoined to Christians, viola-
tion of, 63fn.
plunder, 106, 177
poet, 280
poison gases, 218
poisoned arrows, 198, 217fn.
polity, basis of Muslim, 161
polytheists, 72, associators
Pondicherry, 211fn.
pontiff, 136
popes, 63fn., 64.
Portuguese, the. 111
Port Sa‘id, 86
position & treatment of prisoners,
207
possession, 90, 229
post, 190
postal convention, international
31 fn.
postliminium, 242, 243
pots, 251fn.
practice, 5, 6, 15
practice of Muslim rulers, 21
practice, orthodox, 20, 21
prayer, see service
prediction, 282
pre-emption, 86
prevailing word of God alone. 180
price, 136
priests, 131
primogeniture, 70
privileges, 59, 129
privileges in jurisdiction, 122, capi-
tulation
prisoners, 46, 59, 90, 164, 169, 171,
184, 195, 201, 207, 237, 250
prisoners after enslavement and
distribution, release of, 243
prisoners, beheading of, 208
prisoners cannot be killed. 206
prisoners, duties of, 204
prisoners, compulsory liberation of,
210
prisoners, exchange of, 205, 248
prisoners, feeding expenses of,
207
prisoners killed under Jewish law,
230
prisoners, labour of, 208
prisoners made a shelter, 198
prisoners, punishments of, 206
private enterprise, 73
private international law, 5, 49, 122
private property, 236 ff.
private war, 151
probation period, 103
procession, 235
profession, 109
propaganda, 216
property, 80, 97, 101, 104, 105, 106,
125, 200
property, capture of, 83
property of enemy, 59, 220, 227
property of rebels, 174
property of refugees, 270
property of state, 229
property, private, 227
property, suits against, 122ff.
Prophet, the, Muhammad, 7, 16
Prophet’s powers, 130
prophet of battles and of mercy,461
prophets, 74
prophets, laws of former, 35
prophets, profession of, 9
proselytism, 210
prostration, 137
protected people, 100, 101, dhimmi
protected states, 91, 94
protection tax, 102, 181, 214, 235,
jizyah
protection, individual, 96
protest, 79
provisional agreement, 258, 262
proviso, 270
public armed forces, 127
public dcsDise of Orthodox Caliphs,
78
public service, 101
public utility, 85
punishment of prisoners, 209
punitive action, 77
Punjab, the, 34
INDEX
347
purchase, paying, 106
purchase of booty, 295
purchase, prior right of, 243
pursuit of the defeated, 172, 179,
215
Pyrenees, 35
Qsdl, 110, 114
Qadir Hussain Khan, 112fn.
Qadislyah, 244, 245
Qainuqa 4 , the, 141, 182, 191
Qais the Yamanite, 287
Qais-ibn-Sa*d, 291
(banu) Qais-ibn-Tha‘labah, 53, 279
al-Qalqashandly, 132, 133
Qarawlyin Mosque Library, 123fn.
qasr-us-salat , 99
qiyds, 23
quarter, 58, 106, 169, 249
quarter, definition of, 200
quarter, exceptions to, 202
quarter, scope of, 203
quarter, temporary and conditional,
202
quarter to the absent, 202
quarter, revocation of, 202
Quraish & Quaraishites, the, 52, 53,
55, 132, 148, 185, 202, 259, 265,
266, 267, 268 bis, 269, 289 bis.
(banu) Quraizah, the 79 fn., 142, 182,
209, 230 bis, 274a, 286
Qur’an, 4, 15, 16, 66, 109
Qur’Sn, cancellation of, 16
Qur’an, compilation of, 17
Qur’an, copies of, 16
Qur’an on neutrality, 283 ff.
Qur’an, raised, copies of, 226
Quda’ah, the, 281
Qudlmah-ibn-Ja’far, 228, app. A
Qusaiy, 281
Qutaibah, 137fn.
Rabi’ah, the 53, 279, 287
. Rabiyah, fair of, 53, 56, 57
race, 40, 50
radio, 80
Radluddin as-Sarakhsiy, 9
Radiyah, Queen, 70
Rai’y city, 291
Ramlah-bin-al-Harith, 139
Ramses II., 47
ransom, 210, 211, 237, 238
ransom fixed for prisoners, 205
ransom of prisoners by government,
204, 205
ratification, 262
razzia, 242
Reader of Hidayah, 83
reason, 4
rebel & rebellion, 11, 165, 166, 167,
1<?8, 179, 290
rebellion, leaders of, 176
rebels, non-Muslim, 175
reception of envoy, 137
reciprocity, 107, 122
reciter of Qur’an, 17
recited revelation, 16
recitation of Qur’an prohibited, 109
reclamation of land, 88, 89
red garment, 112
Red Sea, 86 bis, 102, 253
reference, judicial, 126
refugees, 58, 106, 107, 108, 132, 296
refugees in camp, 128, 269
Refugees, property of Meccan, 270
Refugees of Mecca, 233
refugees, Muslim, 55
register of naturalised foreigners,
103
regular force, 239
reign, reason of long, 110
reinforcement, 245
Reland, H., 26
relatives, 207
relief to enemy, 266, 271, ambulance
religion, 50, 73. 103
religion, national and universal, 40 >
religious lore, 66
renunciation of protection, 115,
notice
348
MUSLIM CONDUCT OF STATE
repairing banks of navigable rivers,
85
repatriation, 78
repentance of highwaymen, 179
reporters, 194
reprisals, 147, 198
republic, 69
requisition, 221
resident alien, 11, 97, 117, 120, 128,
192, 193, musta'min
Resident, the, 94
resisting or formidable power, 105
responsa prudentium, 23
restrictions on independence, 71
resurrection, 66
retaliation, 123, 147, 188
revelation, 16, 69, 74
revenue laws, 35
revival of treaties, 190
Reviver of the Kingdom of the
Commander of the Faithful, 94
revocation of quarter, 202
rights of God, 120
rights of man, 120
rights of belligerency, 206, bellige-
rent
rich merchants, 109
river, 82
roads, 85, 222
robbers & robbery, 178, 223. 290,
29 2
Roman Catholicism, 211fn.
Roman empire, 61
Roman law, 33, 49, 60 bis, 62
Roman law influenced by East, 60
Romans, lords of the world, 71
Rome, 47, 48, 49, 137, 277
Rome, back to, 63
roots of law, 15
rules of Muslim law classified, 31
Rule and Faith distinguished, Isla-
mic, 157
ruler, deposition of Muslim, 174
Rum, 65, Byzantines
ROmis, 282, Westerners
ruse, 215, 216
Rusia & Russians, 114, 294fn.
Saba, 30
Sabeans, 103
sacred lands, 235
Sa‘d-ibn-Abi-Waqqas, 268, 281
Sa*d-ibn-Mu‘5dh, 185 passim
safiv % 241, 242, booty
sailing boat, 84
sailor, 110, 218
Saimur, 109. 110 bis
salab , 240, 241, spoil, booty, safly
Salahuddin the Great (Saladin), 21,
94, 116, 136, 217
Sale, 87. 90
Salman al-Farsiy, 272fn.
salaries of Muslim religious offi-
cials in Hindu states. 111
salt sea, 83, 84, open sea
Samaritans, 103
Samuel, 47
San‘a\ 56
sandals, 123, 125
as-Sandaluniy, 109
as-Sarakhsiy, Radiuddln, 74, 96
as-Sarakhsiy (Shamsul-a’immah), 9,
102, 104. 121, 151, 168, 169, 183,
244, 294
Sarir, 11
Satrap, Persian, 241
Saudi Arabia, 99
Schmidt, 27
schools in mosques, 114
scholars, 116
Schwally, 18, 27
Scot, S. P., 217
scouts, military, 134
script and alphabet, 60
Scriptuaries, 101, 102
Scriptuaries, practice of, 237
sea, open, 83, salt sea
sea under man's control, 85
sea- warfare, 245, marine
seal, 262fn., 268
secret agents, 134, 216
INDEX
349
secret service, 216
securities, 121
self-defence, 77, 296
self-defence of neutrals, 115, 296
servants, 195, 203, 250
services, daily religious, 98
service morning, 124
service call, 113, adhan
service on battle-front, religious,
273
Sesostris, 47
settlement in Arabia, non-Muslims
barred from, 102
Shafi’ites, the, 181
ash-Shafi’Iy. 8, 23, 35
Shahbandar, post of, 135
Shaiban, the, 280
ash-Shaibaniy, 8, 75, 102, 120, 122,
135, 140, 151, 174, 189, 198, 218,
223, 245, 250, 261, 262/ 263, 264,
274, 294
ash-Sha'miy, 123
ash-Sharanbilally, 83
sharer of office, 236fn.
shaving beards, 59fn.
sheep, 118, 187, goats
shelter behind women and prisoners,
198, 219
shepherd is every one, 175
Shl 4 ah, the, 44. 45, 78, 94
Shihnah, post of, 136, 137
ships, 85, 97, 217, 297
shipwreck, 58
Shibli, 19
Shihr city. 56
shirt. 124
Sholapur, 90fn.
shoulder blade, 16
sick, 201, 271
sick, chronically, 100
siege, 72, 193, 219, 230
Siffin, battle of, 226
signature, 262, 269
Simon, Dr. Walter, 129fn.
Sindh. 53, 109, 110
Sindan, 109
Sinkiang, 35
Slraf, 109
Sirajuddin al-Kinaniy, 83
sister, 203
siyar % 7, 8, 9, 65, international Law
slave, 75, 101, 114, 152, 172, 195, 203,
235, 238, 251, 253, 272
slave and quarter, 201
slave, emancipation of, 128
slaves compelled to Christianise,
211fn.
slaves, Muslim treatment of, 210
slaves of Greek, all non-Greeks, 71
slaves, postliminium of, 243 fn.
slavery abolished among Arabs,
2ip
slavery restricted among non-Arabs,
210
smoke, 218, poison gases
Snouck-Hurgronje, Prof., 27
solidungular animals, 231
Solvet, 27
soothsayer, 57
South Seas, 88
sovereign as a citizen, 127
sovereign subject to law, 81
sovereignty, 68
sovereignty of God, 175
Spam, 64 bis, 76, 116
Spain, earliest Islamic penetration
in, 34
spears, 10, 211
sphere of influence, 95
spiritual leaders, 131
spoil, 98, booty, salab, safiy
spoils in Jewish law, 72 fn., 230
spokesman, 55
Sprenger, 267 fn.
spy, 134, 193, 222
spy, different punishments of, 223
spy, kinds of, 59 fn.
standards in procession, 235
state, 1, 2, 5, 73
state law, 37
states, diversity of Muslim, 76
states, kinds of, 11
350
MUSLIM CONDUCT OF STATE
stay for naturalisation, length of,
99
stone- worshippers, 103
stores, 82
strategy, 217
stress, 31
subject, 11
subjects of state, 97
subjects at home, 98
succession, 93
. Sudan, 132, 236fn.
Suez canal, see Khalij
sUfls, 44
SufySn-ibn-Anas, 219
Suhar city, 53, 56
Suhail, 267, 268 bis
as-Suhailly, 261
SulaimSn the merchant, 113
Sulaiman Nadwl, 19
Sumerians, the, 46
summons, 123
sunnah % 15. 18, 21, 24, 66, hadlth
Sunnis, the, 44, 45. 78, 277. 278
supernumerary prisoners, 205
supreme court, 22
surprise in war, 217, 218
surplus-property tax, 99, zakat
surrender. 193, capitulation
suspension of penal code, partial,
272
Suwaid-ibn-Muqarrin, 290
as-SuyUtly, 155
sword, 62, 242
Syria. 35, 46, 47. 49, 54, 118, 127, 131,
142,232, 253,259, 264, 267,278
bis, 280, app. A.
ta'amul , 32, custom
at-Tabaraniy, 125
at-Tabariy, 177
Tabaristan, 290
tabarra\ see public despise
TabOk, 253
tacit acobtance, 270
tactics, 2x7
at-Taftazaniy, 23
(banU) Taghlib, Taghlibites, the,
59fn., 214tn., 279, 280
Ta if, 56, 125, 134, 267, 272fn.
Taima\ 258
tanfll, 240
taqwd as against fatu<a % 246
tariff, 135
Tariq, 35
tawriyah , 216, ruse
tax, 101, 112, 170, 179, 188, 229, 231
tax, import, 84, 86
taxes on foreigners, 122
taxable minimum, 135
T'ayites, the, 53, 131
Teheran, 30
telegrams, 190
Telenganah, 95
Templars, the, 64
temple violated, 110
terminology. 7
territorial water, 85, 97, harim
territory. 11, 80, 8L. 82, 84, 91, 104.
117, 120
territory, kinds of. 91, 117
territory, treatment of conquered,
229
testaments of prisoners, 205
Teutonic order, 64
Thalabah, 279
theft, 104, 110
thief made slave, 104fn.
Theocracy, 74, 180
Theodomir, 91
threat of breach of treaty, 182
Thumamah-ibn-Uthal, 186, 252
Tigris, 46, 85, 86
Tikrit, 137
time-limit for treaties, 261
time-limit of peace, 259ff.
Tippu Saltan, 90fn.
at-Tirmidhiy, 220
tithes, 53, 112, 133, 135
title, ( 92, 93, 94, Reviver
toleration, 113
toleration of custom & usage,
INDEX
351
Torah, the, 130
tourists, 201
trade with enemy, 187, 189, 249,
253
traders, 54, 134, 169, 193fn., 197,
• 203, 251
tradition, 18, hadith, sunnah
tradition, compilation of, 19
tradition, first collection of, 19fn.
traffic, 86
traitor, 105
transit, 270
translation of Arabic works, 64
transport, 82
travel, 103
treachery, 114, 182, 196, 248, 280
treasury, state, 101
treaty, 1, 2. 5, 15. 31, 47, 52, 82, 95,
121. 122, 131, 286
treaty, breach of, 182
treaty, deposit of, 55
treaty, earliest recorded, 47
treaties of enemy, 189
treaties respected by Muslims, 73
treaties, universal, 31fn.
trees, 196, 233
tribe. 1. 39. 42, 50. 52
tributary state, 91
tribute, 71 171, 182. 259
tiuce, 59. 270
truce, flag of, 226
truce, kinds of, 254
truce of God, 52, 58
trust. 74,80, 81, 187, 188, 228, 250
trusts of enemy, 18 7
trusteeship, 81
Tughlaq, 93fn.
turban, 202
Turkey & Turks, 63, 64, 70, 84, 90£n.
131, 148, 254
Turkistan, 35, 49
two-rulers’ theory, 69fn.
tyranny, 174
Ubaiy-ibn-Salul, 141
Uhud, battle of, 244. 257, 271, 274
Ukaidir, 154,231
‘Ukaz, fair of, 53, 56 bis, 57
ultimatum, 181, 182
‘Ulwah, 291
Umaiyads, the, 21,44, 64,70, 76, 122
Umaiyahibn-Khalaf, 185 passim, 186
‘Um5n, 51, 53, 56 bis, 94, 138, 257.
265
‘Umar, caliph, 17, 22, 35, 44, 55, 78.
81fn., 86, 99fn , 100, 101, 109, 115
bis, 122,126 tris, 127, 131, 136,
138 bis, 179, 188, 205, 210. 214,
220, 229, 231, 232, 233, 241, 268,
271
‘Umar II, caliph, 90, 211
‘umran pilgrimage, 185, 267
‘ umumul-balawa , 32
Unais, 134fn.
uniform, 59, 224
uniform light brown, 225fn.
uniform of complainant', 112
unilateral declaration, 32, 71
unity, 40
unity of God, 181
universal polity, 73
universities, Arab, 64
unrecited revelation, 16fn.
‘urf, 32, custom
‘Urwah, 58fn.
usage, 5, 15, 32, 34, 36, custom
Usamah, app. A.
usurpation, 104
usury, [26
‘Uthman, caliph, 18 bis, 44, 102, 126,
142, 168, 291
veils for women, 245
vendetta, 58fn.
vicegerency of God, 73
violation of neutrality, 283
Vitoria, the jurist, 64, 110
vivisection, 110
volunteer force, 239
volunteer ladies, 244
253
MUSLIM CONDUCT OF STATE
Walker, Prof,, 28, 64
Wadi al-Qura, 231
al-Waqidiy, 8, Muhammad-ibn-
"Umar
war, 52, 59, 89, 149
war a sickness, 150
war, authorised grounds for, 78
war, defensive, 154, 155, 181
war, definition of, 180
war, effect of outbreak of, 121
war, end of, 257
war, idealistic, 156
war, lawful, 153
war, preventive, 182
war, punitive, 156, 181, 182
war, retaliatory, 182
war, sympathetic, 155
wargear, 252, weapon
warkit, 154
warlike expedition, 294fn.
Wasit, 137
watchword, 219, 224, 274
water, 48, 80. 83, 220, 231
water cut off, 198
water, drinking, 245
water of enemy spoiled, 217fn.
water-carrier, 244
waterways, 85, 86
wealth, 51
weapon, 172. 251, 252
weapons, lawful, 217
well, 85
Wellhausen, 56fn.
West, people of, 53
Westerners, 282, RUmis
Western Ghats, 122fn.
whip, 123, 124, 125
wickedness, 196
wife, 203, 250
wife of ruler, 138
wife's nationality, 103
will, 121, testaments
will of God, 73
will of people, 73
will of prisoners, 205, 207, testa-
ment
will of Prophet, 138, 231
will of state, 2, 14
witness, 111, 268
Woolsey, 63
worldly life, 13
Word of God, 15
women, 72, 152, 172, 184, 194, 195,
201, 269
women and sea warfare, 245
women apostate, 162
women fighters, 244
women in Muslim army, 244
women prisoners, Muslim, 114
women rebel, 173
women's property customs-free, 122
women's share of booty, 240
women, when to kill, 215
world-order, Islamic notion of, 72
world war II, 294fn.
wounded, 172, 244, 245, 271
wounding, 215
writing down of treaty, 261
Wiistenfeld, 226fn.
Yamamah, 94fn„ 186, 252 bis, 266
Yaman, 51, 52, 54, 55, 56. bis, 130,
253, 262, 265, 266, 267, 278, 280,
287
Yanbu 4 , 141, 259
al-Ya‘qGbiy, 58
Yashkur, the, 279
Yazid-ibn-Abl-Sufyan, app. A.
young lady volunteers, 244, 245
Zaid-ibn-‘Aliy, 8fn., 24
Zaid-ibn-Sa'nah, 125
zakdt , 99, 101, 156, 231, 260, surplus
property tax
zakat spent on non-Muslims, 101
ZiySd-ibn-Abi-Sufyan 272fn.
END
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